State of Arizona v. Jahmari Ali Manuel

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0253-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2004-022846-001
)
JAHMARI ALI MANUEL, )
)
Appellant. )
) O P I N I O N
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Susan M. Brnovich, Judge

AFFIRMED
________________________________________________________________

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

STEPHEN M. JOHNSON Phoenix
Attorney for Jahmari Ali Manuel
________________________________________________________________

B A L E S, Justice

¶1 This automatic appeal arises from Jahmari Ali Manuel’s

conviction and death sentence for murdering Darrell Willeford.

We have jurisdiction under Article 6, Section 5(3) of the

Arizona Constitution and A.R.S. § 13-4031 (2011).

 FACTS AND PROCEDURAL BACKGROUND

¶2 In March 2004, Manuel walked into a Phoenix pawn shop

carrying a pistol covered with a blue plastic bag and

immediately began firing at Willeford, the shop owner, who fell

to the floor behind a counter. Manuel walked around the counter

and continued firing, ultimately shooting Willeford ten times.

Manuel then took two guns from the shop. The pawn shop’s

surveillance camera recorded these events. At the crime scene,

police recovered the plastic bag, which contained shell casings

and DNA that was later matched to Manuel’s DNA profile. In

October 2004, police arrested Manuel at a North Carolina hotel.

¶3 Manuel was indicted for first degree murder, first

degree burglary, armed robbery, and misconduct involving

weapons. After finding Manuel guilty on all counts, the jury

found one aggravating factor, pecuniary gain, see A.R.S. § 13-

751(F)(5) (2011), and determined that Manuel should be sentenced

to death for the murder.

DISCUSSION

¶4 Manuel raises six issues on appeal. For the reasons

explained below, we affirm his convictions and sentences.

A. Denial of Motion for Change of Judge

¶5 Manuel argues that the trial court erred in denying

his request for a change of judge pursuant to Arizona Rule of

Criminal Procedure 10.2. We review de novo the trial court’s
2
interpretation of the rule. See Pima Cnty. v. Pima Cnty. Law

Enforcement Merit Sys. Council, 211 Ariz. 224, 227 ¶ 13, 119

P.3d 1027, 1030 (2005).

¶6 Rule 10.2 grants the right to a peremptory change of

judge. At the time of Manuel’s trial, Rule 10.2(a) provided

that “[i]n any death penalty case, any party shall be entitled

to request a change of judge as a matter of right no later than

ten (10) days after the state files a notice of intention to

seek the death penalty.” Ariz. R. Crim. P. 10.2(a) (2009)

(emphasis added). In contrast, Rule 10.2(c) provided that a

notice of change of judge could be filed “in a non-death penalty

case” within ten days after “actual notice to the requesting

party of the assignment of the case to a judge” if a notice had

not earlier been filed. (Effective January 1, 2011, Rule 10.2

was amended to eliminate the distinction between capital and

non-capital cases.)

¶7 Manuel was arraigned in December 2004 and the State

filed its notice of intent to seek the death penalty in February

2005. In June 2009, the case was reassigned to a new judge.

Within ten days of the reassignment, Manuel filed a notice of

change of judge, which the trial court denied as untimely.

¶8 Manuel argues that the trial court should have granted

his notice of change of judge because it did not attack the

court’s “dignity or integrity” and there is “no logical reason”
3
a capital defendant should have less opportunity to change a

judge than a non-capital defendant. These arguments are not

convincing. A peremptory change of judge in the later stages of

a capital case could be more disruptive administratively because

the length and complexity of capital cases make it more

difficult to substitute judges. Moreover, the prior version of

Rule 10.2 allowed a capital defendant two peremptory changes:

one before the state filed its notice of intent to seek the

death penalty and one after. See Campbell v. Barton, 222 Ariz.

414, 416 ¶ 11, 215 P.3d 388, 390 (App. 2009). And although

Manuel cites in passing certain constitutional provisions, he

has waived any constitutional argument against the rule’s

different treatment of capital defendants by not developing it.

See State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955

(1987).

¶9 The trial court did not err in denying Manuel’s notice

of change of judge. The notice was not filed within ten days

after the State filed its notice of intent to seek the death

penalty and thus was untimely under Rule 10.2(a).

B. Denial of Motion to Suppress Evidence

¶10 Manuel argues that the trial court erred in denying

his motion to suppress a pistol found in his hotel room when he

was arrested. Because the police had no warrant to search the

room, Manuel contends that the gun was inadmissible as the
4
“fruit” of an unconstitutional search. See Nix v. Williams, 467

U.S. 431, 441-42 (1984).

¶11 We review the denial of a motion to suppress for an

abuse of discretion, considering only the evidence presented at

the suppression hearing, State v. Spears, 184 Ariz. 277, 284,

908 P.2d 1062, 1069 (1996), and viewing the facts in the light

most favorable to sustaining the ruling, State v. Dean, 206

Ariz. 158, 161 ¶ 9, 76 P.3d 429, 432 (2003).

¶12 Based on an informant’s tip, police in North Carolina

learned that Manuel was a suspect in a Phoenix murder and was

staying with his girlfriend, D.J., at a Charlotte hotel. The

police also learned that Manuel had two outstanding warrants for

auto theft. A SWAT team was dispatched to the hotel, where

officers forced Manuel to the floor and handcuffed him when he

emerged from his second floor room. As Manuel was being

arrested, D.J. came to the room’s doorway, hysterical and

screaming, “don’t hurt him.” She was handcuffed and taken

downstairs by Detective Hetrick and Officer White.

¶13 Other officers promptly conducted a sweep of the hotel

room. While another officer covered with a rifle, Officer

Balamucki lifted the mattress and box spring up from the foot of

the bed to see if anyone was under it. When Balamucki did so,

he heard a “clunking” sound and could see a gun through the mesh

fabric covering the bottom of the box spring. The officers in
5
the room radioed Hetrick and told him they could see a gun in

the box spring. Hetrick then asked D.J. if the police could

search the room for “guns and drugs,” and she said “go ahead.”

Hetrick went to the room and retrieved the pistol.

¶14 In denying Manuel’s motion to suppress the pistol, the

trial court found that the search of the room was lawful based

both on D.J.’s consent and as incident to Manuel’s arrest. At

trial, the pistol was admitted into evidence and an expert

witness for the State testified that ballistics tests showed the

pistol had fired bullet casings found at the murder scene.

¶15 Manuel argues that the trial court erred in finding

that D.J. legally consented to the search and that the search

was incident to Manuel’s arrest. Without reaching the consent

issues, we conclude that the warrantless sweep of the room was

lawful under Maryland v. Buie, 494 U.S. 325 (1990).

¶16 Citing Arizona v. Gant, 129 S. Ct. 1710 (2009), Manuel

contends that a search incident to a lawful arrest is limited to

the area under the arrestee’s immediate control. Under Gant,

police are authorized to search a vehicle incident to the arrest

of a recent occupant “when an arrestee is within reaching

distance of the vehicle or it is reasonable to believe the

vehicle contains evidence of the offense of arrest.” 129 S. Ct.

at 1721. The Court in Gant, however, recognized that its

holding does not affect other recognized exceptions to the
6
warrant requirement, including the exception recognized in Buie.

Id.; see also Meister v. State, 933 N.E.2d 875, 878 (Ind. 2010)

(concluding that Gant does not disturb other exceptions to

warrant requirement for vehicle searches).

¶17 Buie recognized that police, incident to an arrest in

a home, may conduct a warrantless, protective sweep: “a quick

and limited search of the premises . . . conducted to protect

the safety of police officers or others” and “narrowly confined

to a cursory visual inspection of those places in which a person

might be hiding.” 494 U.S. at 327. The Supreme Court noted:

[I]ncident to the arrest the officers could, as a
precautionary matter and without probable cause or
reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which
an attack could be immediately launched. Beyond that,
however, we hold that there must be articulable facts
which, taken together with the rational inferences
from those facts, would warrant a reasonably prudent
officer in believing that the area to be swept harbors
an individual posing a danger to those on the arrest
scene.

Id. at 334.

¶18 As we recently explained, Buie authorizes two types of

protective sweeps: one involving the area “immediately adjacent”

to the place of arrest, which does not require reasonable

suspicion, and a second involving other areas, which requires a

reasonable belief, supported by specific and articulable facts,

that the area harbors someone who could pose a safety threat.

7
State v. Fisher, 226 Ariz. 563, 565-66 ¶¶ 8-9, 12-13, 250 P.3d

1192, 1194-95 (2011).

¶19 The search of Manuel’s hotel room was justified under

the first Buie exception. The police knew that Manuel had

outstanding felony warrants and was possibly involved in a

Phoenix murder. While they were completing the arrest in the

hallway outside the room, D.J. came to the doorway, screaming

hysterically. Officers placed her in handcuffs and removed her

from the scene while other officers swept the room to determine

if anyone else was inside who might pose a threat. The hotel

room was immediately adjacent to the place where Manuel was

arrested and D.J. was detained. Cf. United States v. Thomas,

429 F.3d 282, 287 (D.C. Cir. 2005) (upholding sweep of bedroom

adjacent to living room where arrest occurred). Thus, the

police could sweep the room even without reasonable suspicion

that someone was inside. Cf. Fisher, 226 Ariz. at 567 ¶ 15, 250

P.3d at 1196 (invalidating sweep under second Buie exception

because not supported by reasonable suspicion that others were

in an apartment).

¶20 Because the police were authorized under Buie to

conduct a protective sweep of the room, the question becomes

whether they lawfully discovered the pistol while conducting

such a sweep. Buie permitted the officers to look under the

hotel bed because a person could have been hiding there. See
8
United States v. Green, 599 F.3d 360, 376 (4th Cir. 2010)

(noting that “searching under beds is within the ambit of a

protective sweep”). The police testified that, because of

safety concerns, their usual practice is to look under a bed by

lifting its mattress and box spring, and we conclude that their

doing so here was within the permissible scope of a Buie sweep.

¶21 Viewed in the light most favorable to upholding the

trial court’s ruling, the record indicates that when Officer

Balamucki lifted the bed, he saw the gun, which had slid down

the box spring, through the mesh fabric on the bottom. Because

he was entitled to lift up the bed and discovered the gun in

plain view, the trial court did not err in denying the motion to

suppress.

C. Prosecutorial Misconduct

¶22 Manuel argues that the prosecutor engaged in

misconduct at trial by making argumentative comments and asking

witnesses improper questions. Prosecutorial misconduct

constitutes reversible error only if (1) misconduct exists, and

(2) there is a reasonable likelihood that the misconduct could

have affected the jury’s verdict, thereby denying the defendant

a fair trial. See State v. Gallardo, 225 Ariz. 560, 568 ¶ 34,

242 P.3d 159, 167 (2010), cert. denied, 131 S. Ct. 1796 (2011).

The defendant must show that the misconduct “so infected the

trial with unfairness as to make the resulting conviction a
9
denial of due process.” State v. Morris, 215 Ariz. 324, 335 ¶

46, 160 P.3d 203, 214 (2007). Alleged instances of

prosecutorial misconduct are evaluated both separately and for

their cumulative effect. Id. ¶ 47.

¶23 Manuel contends that the prosecutor made argumentative

comments, particularly during the State’s opening statements in

the sentencing phase, and ignored sustained objections.

Although the prosecutor did make some argumentative comments,

the record does not reflect that the prosecutor disregarded the

court’s rulings sustaining objections. Moreover, the trial

judge repeatedly instructed the jury that it should consider

only evidence presented by testimony or exhibits, that the

lawyers’ statements were not evidence, and that it should ignore

statements to which objections were sustained.

¶24 Such cautionary instructions by the court generally

cure any possible prejudice from argumentative comments during

opening statements. See State v. Bowie, 119 Ariz. 336, 340, 580

P.2d 1190, 1194 (1978) (“Any possible prejudice from the opening

statement was overcome by the court’s cautionary instructions

that evidence did not come from the attorneys and that the

verdict must be determined only by reference to the evidence.”).

Jurors are presumed to follow the court’s instructions. State

v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006).

In light of this presumption and the trial judge’s cautionary
10
instructions, Manuel has failed to establish prejudice. Cf.

Gallardo, 225 Ariz. at 568-70 ¶¶ 36-45, 242 P.2d at 167-69

(finding improper statements not prejudicial).

¶25 Manuel also argues that the prosecutor improperly

cross-examined several witnesses during the penalty phase,

including D.J. and Manuel. Although the prosecutor aggressively

cross-examined Manuel and D.J., Manuel does not identify how any

particular incident might have caused prejudice. We again

presume that the jury followed the court’s instructions and

disregarded questions to which objections were sustained.

¶26 Citing In re Zawada, 208 Ariz. 232, 92 P.3d 862

(2004), and State v. Hughes, 193 Ariz. 72, 969 P.2d 1184 (1998),

Manuel contends that the prosecutor committed misconduct by

disrespecting Dr. Cunningham, Manuel’s mitigation expert, and

suggesting that Cunningham reached his conclusions only because

he was being paid.

¶27 In Zawada and Hughes, we held that a prosecutor had

committed misconduct by, among other things, suggesting, without

evidence, that defense counsel had paid money to a mental health

expert to fabricate a diagnosis of insanity for the defendant.

See Zawada, 208 Ariz. at 237 ¶ 16, 92 P.3d at 867; Hughes, 193

Ariz. at 86 ¶ 61, 969 P.2d at 1198. These cases recognize

ethical limits on a prosecutor’s questioning of defense experts.

“[I]t is improper [for a prosecutor] to imply unethical conduct
11
on the part of an expert witness in the absence of evidentiary

support.” State v. Velazquez, 216 Ariz. 300, 311 ¶ 48, 166 P.3d

91, 102 (2007) (quoting Hughes, 193 Ariz. at 86 ¶ 59, 969 P.2d

at 1198). We have also cautioned that “a prosecutor cannot

attack the expert with non-evidence, using irrelevant, insulting

cross-examination and baseless argument designed to mislead the

jury.” State v. Roque, 213 Ariz. 193, 229 ¶ 161, 141 P.3d 368,

404 (2006) (quoting Zawada, 208 Ariz. at 237 ¶ 14, 92 P.3d at

867).

¶28 Cunningham, a clinical psychologist, testified on

direct that Manuel had experienced many “adverse developmental

factors” that impair one’s ability to make good decisions and

that inmates with Manuel’s characteristics have a relatively low

risk of violent behavior in prison. In response to defense

counsel’s questions, Cunningham said that he had worked about

100 hours on this case for an hourly rate of $300. He also

acknowledged that the prosecution had never called him as an

expert in a capital case, noting that he would not expect the

prosecution to do so given the subject matter of his testimony.

¶29 The prosecutor vigorously cross-examined Cunningham.

Over defense counsel’s objections, the prosecutor elicited that

Cunningham and his wife earned about $200-300,000 annually from

work on capital cases, that his total income was about $400,000,

and that $650,000 was “in the ball park” for his gross income
12
from work on both capital and non-capital cases. The

prosecutor’s questions about Cunningham’s compensation from

expert work were not improper. Cf. State v. Mauro, 159 Ariz.

186, 199, 766 P.2d 59, 72 (1988) (acknowledging that an attorney

may cross-examine an expert witness regarding payment for

testimony).

¶30 During closing arguments, the prosecutor criticized

Cunningham’s testimony on various grounds, including by arguing

that the expert had been hired 142 times by the defense and

never by the prosecution because he was biased. The prosecutor

asserted that Cunningham had received over $600,000 “in

compensation last year doing this same thing in case after case,

state to state . . . . That is bias. For $600,000 one's

testimony becomes predictable.” Later the prosecutor argued

that Cunningham’s work reflected “total extreme bias in favor of

the defendant,” and “a bias of $600,000.”

¶31 Defense counsel did not object to the prosecutor’s

comments in closing argument, so we review them only for

fundamental error. See Gallardo, 225 Ariz. at 568 ¶ 35, 242

P.2d at 167. The prosecutor’s remarks were improper in certain

respects. He misstated the testimony about Cunningham’s annual

income and his assertion that Cunningham had “done the same

thing in case after case, state to state” was not supported by

the record. The prosecutor’s comments about Cunningham’s bias
13
also were problematic. Counsel may attempt to impeach expert

witnesses by showing that they earn their income by testifying

consistently for one side. But absent evidentiary support, it

is improper for a prosecutor to intimate that a defense expert

has reached conclusions merely for pecuniary gain. The trial

court here might have properly sustained an objection to the

prosecutor’s comments regarding Cunningham’s compensation and

bias, but no objection was made.

¶32 Manuel has not shown that the prosecutor’s remarks

caused prejudice sufficient to constitute fundamental error.

The prosecutor here did not suggest, as did the prosecutor in

Zawada, that the expert had colluded with the defense to

fabricate a diagnosis. Moreover, the jury was instructed that

the lawyer’s comments were not evidence. See State v.

Velazquez, 216 Ariz. 300, 312 ¶¶ 50, 53, 166 P.3d 91, 103 (2007)

(noting jury instruction in concluding that improper comments in

closing did not constitute fundamental error).

¶33 The instances of alleged misconduct identified by

Manuel also do not warrant reversal when considered

cumulatively. The record does not reflect pervasive misconduct

that deprived him of a fair trial. Cf. Gallardo, 225 Ariz. at

570 ¶ 47, 242 P.3d at 169 (reaching similar conclusion regarding

alleged misconduct in penalty phase opening statement and

closing argument).
14
 D. Jury Question

¶34 Manuel argues that the trial judge incorrectly

answered a juror’s question in the penalty phase. During

deliberations, a juror asked in writing if the jury could

recommend the type of life sentence it might impose. The trial

judge informed counsel of the question, and both sides initially

agreed that the judge should answer “no.” After further

consideration, Manuel’s counsel changed his position and

maintained that the jury should be able to make such a

recommendation. The trial judge responded “no” to the juror’s

question.

¶35 We review a trial court’s rulings with respect to

answering jury questions for an abuse of discretion. State v.

Kuhs, 223 Ariz. 376, 384 ¶ 42, 224 P.3d 192, 200, cert. denied,

131 S. Ct. 228 (2010).

¶36 “If the trier of fact determines that a sentence of

death is not appropriate . . . the court shall determine whether

to impose a sentence of life or natural life.” A.R.S. § 13-

752(A) (2011). Because the court is assigned the responsibility

of determining which type of life sentence a defendant should

receive, a defendant is not entitled to a jury’s recommendation

on this issue. Cf. Ariz. R. Crim. P. 23.2(f) (providing that

“at the conclusion of the penalty hearing, the jury shall render

a verdict determining whether to impose a sentence of death”).
15
The trial court therefore did not abuse its discretion in

responding “no” to the juror’s question.

E. Juror Misconduct

¶37 Manuel argues that a juror was intoxicated during at

least one day of testimony and that the trial court abused its

discretion in denying Manuel’s motion for a new trial based on

this misconduct.

¶38 During the penalty phase, the jury recessed for lunch

on September 3, the last trial day before Labor Day weekend.

When the trial resumed after lunch, a juror gave the bailiff a

note saying he thought Juror 9 was drunk. After about twenty

minutes of testimony, the judge excused the jury and questioned

Juror 9 and an alternate juror about their activities over

lunch. Juror 9 said that he had drunk a glass of bourbon; the

alternate juror admitted drinking a shot of whiskey. The judge

admonished the entire jury not to consume alcoholic beverages

during juror hours and recessed the trial for the weekend.

Denying Manuel’s motion for a new trial, the judge ruled that,

when the trial resumed, defense counsel could repeat the

testimony given by a defense witness after lunch. When the

trial resumed after Labor Day, the witness continued his

testimony and defense counsel repeated some matters covered the

preceding week. The alternate juror who acknowledged drinking

at lunch did not participate in the jury’s deliberations.
16
¶39 After the jury returned its penalty-phase verdict,

Manuel renewed his motion for a new trial. At an evidentiary

hearing, Juror 9 testified that it was not uncommon for him to

have a beer over lunch, but he did not believe his consumption

of alcohol interfered with his ability to be a fair and

impartial juror, and he had not consumed any alcohol during

juror hours after the judge’s admonishment. The trial court

denied the renewed motion for a new trial.

¶40 We review a trial court’s decision to grant or deny a

new trial based on alleged juror misconduct for an abuse of

discretion. State v. Jones, 185 Ariz. 471, 484, 917 P.2d 200,

213 (1996). “[J]uror misconduct warrants a new trial [only] if

the defense shows actual prejudice or if prejudice may be fairly

presumed from the facts.” State v. Cruz, 218 Ariz. 149, 163 ¶

68, 181 P.3d 196, 210 (2008) (quoting State v. Miller, 178 Ariz.

555, 558, 875 P.2d 788, 791 (1994)) (alterations in original).

¶41 Despite Manuel’s assertions, the record does not

indicate that Juror 9 was intoxicated during trial except

possibly after lunch on September 3. On that occasion, the

judge appropriately responded by recessing the trial for the

weekend, admonishing the jury against consuming alcohol, and

permitting Manuel’s counsel to repeat any testimony that was

given in the twenty minutes after lunch. Under Jones, Manuel

must show that “the misconduct was prejudicial or that prejudice
17
can be fairly presumed” to secure reversal of the trial court’s

denial of a new trial. 185 Ariz. at 484, 917 P.2d at 213.

Although we do not condone Juror 9’s drinking, we decline to

adopt a per se rule mandating an immediate mistrial whenever a

juror has consumed alcohol during a capital trial. Cf. United

States v. Taliaferro, 558 F.2d 724, 726 (4th Cir. 1977)

(holding, in non-capital case, the juror’s consuming alcohol

does not require new trial absent prejudice); State v. Dann, 220

Ariz. 351, 363 ¶ 50, 207 P.3d 604, 616 (2009) (noting, in

capital case, that declaration of mistrial is most dramatic

remedy for trial error and should only be granted if justice

will be thwarted absent a new trial). The judge did not abuse

her discretion in denying Manuel’s motion for new trial.

F. Review of the Death Sentence

¶42 Because the murder occurred after August 1, 2002, this

Court must review Manuel’s death sentence 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) (2011). A finding of an aggravating circumstance is not

an abuse of discretion if there is “any reasonable evidence in

the record to sustain it.” Morris, 215 Ariz. at 341 ¶ 77, 160

P.3d at 220. The jury’s determination that death is the

appropriate sentence will not be reversed “so long as any

reasonable jury could have concluded that the mitigation
18
established by the defendant was not sufficiently substantial to

call for leniency.” Id. ¶ 81.

1. Aggravating Circumstances

¶38 The jury found that the murder was committed as

consideration for the receipt, or in expectation of the receipt,

of anything of pecuniary value, see A.R.S. § 13-751(F)(5). The

trial court properly instructed the jury that the State had to

prove that pecuniary gain was a motive, cause, or impetus for

the murder and not merely the result of the murder. See State

v. Sansing, 200 Ariz. 347, 353 ¶ 12, 26 P.3d 1118, 1124 (2001),

vacated and remanded on other grounds, 536 U.S. 954 (2002).

¶39 Sufficient evidence exists to support the jury’s

finding. Before the murder, Manuel had asked D.J. to go into

the pawn shop and attempt to pawn a chain he had given her.

D.J. testified that Manuel was “broke” and might have needed

money for gas. The jury also could infer that he had sent D.J.

inside to determine who was present. Manuel entered the shop

firing his weapon, suggesting that he committed the murder to

facilitate the robbery. Manuel then took two pistols from the

pawn shop. The jury could reasonably conclude that pecuniary

gain was a motive, cause, or impetus for the murder.

2. Mitigating Circumstances

¶40 After the jury finds one or more aggravating factors,

each juror must determine whether death is the appropriate
19
penalty. See A.R.S. § 13-751(C); see also Gallardo, 225 Ariz.

at 570 ¶ 51, 242 P.3d at 169. We will uphold a jury’s decision

that death is appropriate if any “reasonable juror could

conclude that the mitigation presented was not sufficiently

substantial to call for leniency.” Id. ¶ 52.

¶41 Manuel presented evidence about his troubled childhood

and family history, his behavior during past incarcerations, and

how his execution would impact his extended family. Although

this evidence was extensive, a reasonable juror could conclude

that the mitigation was not sufficiently substantial to call for

leniency. Manuel was thirty-two years old at the time of the

crime, he had been incarcerated several times previously, and he

did not establish a strong causal relationship between the

mitigating circumstances and the murder. The jury did not abuse

its discretion by determining that Manuel should be sentenced to

death. Cf. Cruz, 218 Ariz. at 170-71 ¶ 138, 181 P.3d at 217-18

(concluding death sentence was not abuse of discretion when jury

found one aggravating factor and defendant offered little or no

evidence connecting mitigating evidence with the crime).

G. Issues Preserved for Federal Review

¶42 To avoid preclusion, Manuel raises twenty-two

additional constitutional claims that he states have been

rejected in previous decisions by this Court or the United

20
States Supreme Court. The attached appendix lists these claims

and the decisions Manuel identifies as rejecting them.

CONCLUSION

¶43 We affirm Manuel’s convictions and sentences.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

21
 APPENDIX

Manuel raises twenty-two issues to preserve them for
federal review. This Appendix lists his claims and the decisions
he identifies as rejecting them.

1. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution. State v. Harrod, 200 Ariz. 309, 320, 26
P.3d 492, 503 (2001).

2. The death penalty is imposed arbitrarily and irrationally
in Arizona in violation of the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
Arizona Constitution, as well as Manuel’s right to due process
under the Fifth and Fourteenth Amendments to the United States
Constitution and Article 2, § 4 of the Arizona Constitution.
State v. Beaty, 158 Ariz. 232, 762 P.2d 519 (1988).

3. Application of the death penalty on the facts of this case
would constitute cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments to the United States
Constitution and Article 2, §§ 1, 4, and 15 of the Arizona
Constitution.

4. The prosecutor’s discretion to seek the death penalty has
no standards and therefore violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2, §§
1, 4, and 15 of the Arizona Constitution. State v. Sansing, 200
Ariz. 347, 361, 26 P.3d 1118, 1132 (2001).

5. Aggravating factors under A.R.S. § 13-703(F) are elements
of capital murder and must be alleged in an indictment and
screened for probable cause. Arizona’s failure to require this
violates a defendant’s right to due process and a fair trial
under the Sixth and Fourteenth Amendments to the United States
Constitution and Art. 2, §§ 4 and 24 of the Arizona
Constitution. McKaney v. Foreman, 209 Ariz. 268, 100 P.3d 18
(2004). Recently, although not mandating aggravators to be
screened for probable cause on constitutional grounds, this
Court found that defendants had a right under the rules of
criminal procedure to have the aggravators screened for probable
cause. See Chronis v. Steinle, 220 Ariz. 559, 208 P.3d 210
(2009).

22
6. 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 to the
United States Constitution and Article 2, § 15 of the Arizona
Constitution. Harrod, 200 Ariz. at 320, 26 P.3d at 503.
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.

7. Arizona’s capital sentencing scheme is unconstitutional
because it does not require that the State prove that the death
penalty is appropriate. Failure to require this proof violates
the Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution and Article 2, § 15 of the Arizona
Constitution. State v. Ring, 200 Ariz. 267, 284, 25 P.3d 1139,
1156 (2001) (Ring I), rev’d on other grounds by Ring II.

8. A.R.S. § 13-703 provides no objective standards to guide
the sentencer in weighing the aggravating and mitigating
circumstances and therefore violates the Eighth and Fourteenth
Amendments of the United States Constitution and Article 2, § 15
of the Arizona Constitution. State v. Pandeli, 200 Ariz. 365,
382, 26 P.3d 1136, 1153 (2001).

9. Arizona’s death penalty scheme is unconstitutional because
it does not require the sentencer to find beyond a reasonable
doubt that the aggravating circumstances outweigh the
accumulated mitigating circumstances, in violation of the Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution and Article 2, §§ 4 and 15 of the Arizona
Constitution. State v. Poyson, 198 Ariz. 70, 83, 7 P.3d 79, 92
(2000).

10. A.R.S. § 13-703 does not sufficiently channel the
sentencer’s discretion. Aggravating circumstances should narrow
the class of persons eligible for the death penalty and
reasonably justify the imposition of a harsher penalty. The
broad scope of Arizona’s aggravating factors encompasses nearly
anyone involved in a murder, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, § 15 of the Arizona Constitution. Pandeli, 200 Ariz.
at 382, 26 P.3d at 1153.

11. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of the
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Arizona Constitution. State v. Hinchey, 181 Ariz. 307, 315, 890
P.2d 602, 610 (1994).

12. Arizona's current protocols and procedures for execution by
lethal injection constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments. State v.
Andriano, 215 Ariz. 497, 510, 161 P.3d 540, 553 (2007).

13. 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 to the
United States Constitution and Article 2, § 15 of the Arizona
Constitution. State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028,
1037 (1996).

14. A.R.S. § 13-703, (now 13-751 et. seq.) unconstitutionally
fails to require the cumulative consideration of multiple
mitigating factors or require that the jury make specific
findings as to each mitigating factor. State v. Gulbrandson,
184 Ariz. 46, 69, 906 P.2d 579, 602 (1995).

15. Arizona's statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz. 233,
242, 609 P.2d 48, 57 (1980).

16. Death sentences in Arizona have been applied arbitrarily
and irrationally and in a discriminatory manner against
impoverished males whose victims have been Caucasian. State v.
West, 176 Ariz. 432, 455, 862 P.2d 192, 215 (1993).

17. Subjecting Appellant to a second trial on the issue of
aggravation and punishment before a new jury violates the double
jeopardy clause of the Fifth Amendment. State v Ring, 204 Ariz.
534, 550, 65 P.3d 915, 931 (2003) (Ring III).

18. The reasonable doubt jury instruction at the aggravation
trial lowered the state's burden of proof and deprived Appellant
of his right to a jury trial and due process under the Sixth and
Fourteenth Amendments. State v. Dann, 205 Ariz. 557, 575-76, 74
P.3d 231, 249-50 (2003) (Dann I).

19. Arizona's death statute creates an unconstitutional
presumption of death and places an unconstitutional burden on
Appellant to prove mitigation is “sufficiently substantial to

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call for leniency.” State v. Glassel, 211 Ariz. 33, 52, 116
P.3d 1193, 1212 (2005).

20. The introduction of victim impact evidence is improper
because a defendant does not receive pretrial notice or an
opportunity to confront and cross-examine the victim witness.
Lynn v. Reinstein, 205 Ariz. 186, 191, 68 P.3d 412, 417 (2003).

21. The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or sympathy in
evaluating the mitigation evidence and determining whether to
sentence the defendant to death. State v. Carreon, 210 Ariz.
54, 70-71, 107 P.3d 900, 916-917 (2005).

22. The jury instruction requiring the jury to unanimously
determine that the mitigating circumstances were “sufficiently
substantial to call for leniency” violated the Eighth Amendment.
State v. Ellison, 213 Ariz. 116, 139, 140 P.3d 899, 922 (2006).

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