State v. Prince

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0019-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR1998-004885
WAYNE BENOIT PRINCE, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge

AFFIRMED
________________________________________________________________

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

SHARMILA ROY, ATTORNEY AT LAW Laveen
By Sharmila Roy
Attorney for Wayne Benoit Prince
________________________________________________________________

P E L A N D E R, Justice

¶1 Wayne Benoit Prince, Jr. was convicted of first degree

murder of his stepdaughter and attempted first degree murder of

his wife. He was sentenced to death for the murder and to a

prison term for the attempt conviction. We have jurisdiction

over this automatic appeal under Article 6, Section 5(3) of the

Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033(A)(1)

1
(2010).1

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 The pertinent facts are set forth in our first opinion

in this case, State v. Prince (Prince I), 204 Ariz. 156, 157-58

¶¶ 2-3, 61 P.3d 450, 451-52 (2003). In brief, Prince engaged in

a heated dispute with his wife, Christine, beating her and

repeatedly threatening to kill her and her two children; he

ultimately shot and killed his stepdaughter, Cassandra, and then

shot and severely injured Christine.

¶3 A jury found Prince guilty of first degree murder and

attempted murder. The trial judge sentenced him to death for

the murder of Cassandra and twenty-one years in prison for the

attempted murder of Christine. We affirmed both convictions and

the sentence for the attempted murder conviction, Prince I, 204

Ariz. at 161 ¶ 28, 61 P.3d at 455, but in a supplemental opinion

vacated the death sentence and remanded the case for

resentencing pursuant to Ring v. Arizona (Ring II), 536 U.S. 584

(2002). State v. Prince (Prince II), 206 Ariz. 24, 28 ¶ 15, 75

P.3d 114, 118 (2003).

¶4 During the aggravation phase of the ensuing

resentencing, the jurors found two aggravating circumstances:

(1) Prince committed the murder in an especially cruel manner,

1
  This opinion cites the current version of statutes unless
otherwise noted. 
2
A.R.S. § 13-751(F)(6), and (2) Prince was at least eighteen and

Cassandra under fifteen years of age when she was killed, § 13-

751(F)(9). In the penalty phase, however, the jury could not

reach a unanimous verdict on the appropriate sentence.

¶5 In accordance with A.R.S. § 13-752(K), a second

penalty-phase jury was impaneled. This jury found no mitigation

sufficiently substantial to call for leniency and determined

that Prince be sentenced to death.

II. ISSUES ON APPEAL

A. Challenges to Second Penalty Jury Process

1. Ex Post Facto Violation

¶6 Under the law in effect when Prince murdered

Cassandra, the judge decided whether to impose a death sentence

and resolved any doubt as to the ultimate sentence in favor of

life imprisonment. See former A.R.S. § 13-703(E) (1997). In

contrast, § 13-752(K) provides that if the jury cannot reach a

verdict at the first penalty phase, “the court shall dismiss the

jury and shall impanel a new jury.” Prince claims § 13-752(K)

violates the ex post facto clauses of both the United States and

Arizona Constitutions by giving the state a second chance to

seek a death sentence, which could not occur under the law in

effect at the time of the murder.

¶7 We rejected an identical ex post facto argument in

State v. Cropper, 223 Ariz. 522, 526 ¶ 11, 225 P.3d 579, 583
3
(2010). Prince acknowledges that decision but claims Cropper

violates the spirit of Stogner v. California, 539 U.S. 607, 611

(2003), in which the Supreme Court struck, on ex post facto

grounds, a California statute authorizing the prosecution of

child sex crimes after the expiration of the statute of

limitations. Prince analogizes his situation to Stogner,

claiming former § 13-703(E) created “a statute of limitations

regarding the death penalty: once a particular sentencer had

doubts about the propriety of the death penalty, the limitations

period expired.”

¶8 The statute in Stogner created new criminal liability

when none otherwise existed by resurrecting crimes after their

limitation periods had expired. 539 U.S. at 613. Impaneling a

second jury when the first cannot unanimously agree on a

sentence creates no new liability unless a hung jury is

tantamount to an acquittal. Yeager v. United States, 129 S. Ct.

2360, 2366 (2009), rejected that characterization in the guilt

phase for double jeopardy purposes, and Cropper appropriately

extended Yeager’s reasoning to the penalty phase for sentencing

purposes. Moreover, no analogue to a hung jury exists for

judges. See Cropper, 223 Ariz. at 526 ¶ 11, 225 P.3d at 583 (“A

judge, unlike a jury, cannot ‘deadlock’ on a sentencing

decision[,]” and “[a] jury’s decision to acquit a defendant

differs from a jury’s failure to reach a decision.”). Because
4
Prince offers no other compelling reason to revisit Cropper, we

reject his ex post facto claim.

2. Vagueness of § 13-752(K)

¶9 Prince argues § 13-752(K) is unconstitutionally vague

because it does not establish procedures governing the

admission, to a new jury during the second penalty phase, of

evidence of the aggravating factors previously found by the

aggravation-phase jury.

¶10 Before commencing the second penalty phase, the trial

court ruled that it would inform the new jury only of Prince’s

first degree murder conviction and of the descriptive titles and

definitions of the two aggravating circumstances found by the

aggravation-phase jury. The judge thus precluded either side

from presenting any evidence relating to guilt or the

aggravating circumstances.

¶11 The court of appeals accepted jurisdiction of the

State’s subsequent special action and vacated the trial court’s

order, ruling that the facts of the crime and aggravating

factors are relevant to determining whether there is mitigation

sufficiently substantial to call for leniency. State ex rel.

Thomas v. Duncan (Prince), 1 CA-SA 08-0042, 2008 WL 4501925, at

*4 ¶ 15 (Ariz. App. May 6, 2008) (mem. decision). We denied

Prince’s petition for review. State ex rel. Thomas v. Prince,

219 Ariz. 127, 194 P.3d 394 (2008).
5
¶12 The State claims Prince is now barred from challenging

the constitutionality of § 13-752 because the court of appeals’

decision is the law of the case. But we are not precluded from

addressing issues in a direct mandatory appeal simply because we

declined to review in the same case an interlocutory court of

appeals’ decision. Our prior “denial of review does not mean we

accepted the [c]ourt of [a]ppeals’ legal analysis or conclusion”

and “has no precedential value.” Calvert v. Farmers Ins. Co.,

144 Ariz. 291, 297 n.5, 697 P.2d 684, 690 n.5 (1985).

Consequently, the law of the case doctrine is inapplicable, and

we thus address Prince’s argument on the merits.

¶13 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).2 Additionally, “the

state may present any evidence that demonstrates that the

defendant should not be shown leniency.” Id. The penalty jury

“shall consider as [a] mitigating circumstance[] any factors

proffered by the defendant or the state that are relevant in

determining whether to impose a sentence less than death,

2
Our rules of criminal procedure prescribe a similar
standard. “The defense shall offer evidence in support of
mitigation” and “[t]he state may . . . offer any evidence
relevant to mitigation.” Ariz. R. Crim. P. 19.1(d)(4)-(5). A
defendant may also “offer evidence in rebuttal” of the state’s
proffered evidence. Ariz. R. Crim. P. 19.1(d)(6).
6
including any aspect of the defendant’s character, propensities

or record and any of the circumstances of the offense.” A.R.S.

§ 13-751(G). Any evidence admitted during the aggravation phase

is deemed admitted at the penalty phase, as long as the penalty

jury is the same jury that tried aggravation. See A.R.S. § 13-

752(I).

¶14 As noted earlier, if the jury is “unable to reach a

verdict” at the first penalty phase, “the court shall dismiss

the jury and shall impanel a new jury.” A.R.S. § 13-752(K).

This new jury may not retry “the defendant’s guilt or the issue

regarding any of the aggravating circumstances that the first

jury found by unanimous verdict to be proved or not proved.”

Id.

¶15 Although no provision comparable to § 13-752(I)

addresses the admissibility of aggravation-phase evidence during

a second penalty phase, the statutes are not vague or wholly

silent on the issue. Section 13-752(G) is framed broadly and

generally governs the admission of evidence at the penalty

phase. Significantly, that statute prescribes only one

criterion for admissibility: relevance “to the determination of

whether there is mitigation that is sufficiently substantial to

call for leniency.” A.R.S. § 13-752(G). Subject to overarching

due process considerations, see State v. Pandeli, 215 Ariz. 514,

527-28 ¶ 43, 161 P.3d 557, 570-71 (2007), any evidence that
7
meets § 13-752(G)’s criterion is admissible, regardless of

whether the evidence was admissible at a prior stage of the

trial.

¶16 Importantly, § 13-752(G) uses the phrase “mitigation

that is sufficiently substantial to call for leniency,” rather

than simply “mitigating factors.” The former phrase

contemplates liberal admission of any evidence relevant not only

to the existence of mitigating factors, but also to the jury’s

ultimate determination of whether those factors call for

leniency in sentencing. Thus, the statute’s standard for

admissibility is framed in terms of the penalty-phase jury’s

duty to “assess whether to impose the death penalty based upon

each juror’s individual, qualitative evaluation of the facts of

the case, the severity of the aggravating factors, and the

quality of any mitigating evidence.” State ex rel. Thomas v.

Granville (Baldwin), 211 Ariz. 468, 472 ¶ 17, 123 P.3d 662,

666 (2005). Jurors cannot perform that duty without knowing

relevant facts about the circumstances of the murder and the

aggravating factors, making aggravation-phase evidence directly

relevant to whether the mitigation is “sufficiently substantial

to call for leniency.”

¶17 Similarly, by also allowing the state to “present any

evidence that demonstrates that the defendant should not be

shown leniency,” § 13-752(G) permits any evidence probative on
8
that issue, subject only to due process limitations. That

standard is not constrained by the existence or nature of

“mitigating factors,” or limited to evidence that was relevant

or admissible at a prior stage of the trial.

¶18 Consequently, during a second penalty phase, the state

and the defendant may introduce evidence pertaining to the

aggravating circumstances previously found, subject to § 13-

752(G)’s general relevance standard. The parties largely

control which facts are presented to the jury about the

aggravating circumstances, with the trial judge acting as a

gatekeeper. Cf. State v. Nichols (Nordstrom), 219 Ariz. 170 174

¶ 12, 195 P.3d 207, 211 (App. 2008) (stating “the legislature

has placed no express limits on what evidence a defendant may

present” during the aggravation phase, except those limitations

imposed by “the rules of evidence” (citing former A.R.S. § 13-

703(B), now A.R.S. § 13-751(B))).

¶19 Our cases support this conclusion. In State v. Garza,

we affirmed the trial court’s admission of a 911 tape during the

penalty phase, noting that it was relevant because the penalty

jury “may consider the circumstances of the crime in its

evaluation of mitigation.” 216 Ariz. 56, 68 ¶ 57, 163 P.3d

1006, 1018 (2007). And in State v. Harrod, we held that A.R.S.

§ 13-751(G) does not permit residual doubt evidence during the

penalty phase, but stated that the phrase “any of the
9
circumstances of the offense” in § 13-751(G) refers “to such

factors, among others, as [] how a defendant committed first

degree murder.” 218 Ariz. 268, 280 ¶ 43, 183 P.3d 519, 531

(2008).

¶20 Our view of § 13-752(G) also comports with federal

constitutional principles. At the penalty phase, the jury must

make “a reasoned, individualized sentencing determination based

on a death-eligible defendant’s record, personal

characteristics, and the circumstances of his crime.” Kansas v.

Marsh, 548 U.S. 163, 174 (2006) (citing Gregg v. Georgia, 428

U.S. 153, 189 (1976) (Stewart, J., plurality opinion)).

Construing § 13-752(G) as generally authorizing the admission of

evidence concerning the circumstances of the crime and the

aggravating factors thus preserves the entire statutory scheme’s

constitutionality. See Kilpatrick v. Superior Court, 105 Ariz.

413, 416, 466 P.2d 18, 21 (1970). Because the statutes

governing the second penalty phase provide sufficient guidance,

we reject Prince’s void-for-vagueness argument.

3. Constitutionality of Trifurcated Jury Proceeding

¶21 Prince challenges the trifurcation of his trial, in

which separate juries tried the guilt, aggravation, and penalty

phases. A defendant, however, is not entitled to have the same

jury render verdicts in each phase of a capital trial. State v.

Anderson, 210 Ariz. 327, 348 ¶ 85, 111 P.3d 369, 390 (2005).
10
Consequently, the use of different guilt and sentencing-phase

juries does not violate a defendant’s rights. Id. We extended

Anderson in State v. Moore, upholding the use of different

juries in the aggravation and penalty phases. 222 Ariz. 1, 17

¶ 90, 213 P.3d 150, 166 (2009).3

¶22 Prince nonetheless argues that the final penalty-phase

jury in a trifurcated proceeding might not have heard all of the

relevant circumstances of the crime. He repeats his claim that

§ 13-752(K) does not adequately guide judges on the

admissibility of aggravation-phase evidence during the second

penalty phase. Additionally, even if the same witnesses testify

in each proceeding, Prince contends a witness’s demeanor and

words might change, altering how each jury perceives the same

testimony.

¶23 As explained earlier, however, § 13-752(G)’s general

relevance standard governs the admissibility of evidence during

a second penalty phase. If a defendant believes a trial judge

incorrectly excluded admissible evidence or admitted excludable

evidence at any phase, he has a remedy on appeal. And even if

each jury in a trifurcated proceeding perceives the same

3
  In Moore, the penalty-phase jury also retried an
aggravating factor because the first jury failed to reach a
verdict on that factor. 222 Ariz. at 6, ¶¶ 13-14, 213 P.3d at
155. Thus, unlike this case, Moore did not involve a completely
trifurcated proceeding.
11
testimony differently, that does not invariably disadvantage,

and in some cases could greatly benefit, a defendant.

¶24 Most importantly, Prince does not point to any

relevant evidence that was excluded from the second penalty

jury’s consideration because of the trifurcated proceeding. As

in Moore, “[s]ubstantially the same evidence was introduced at

the second sentencing trial as at the . . . first sentencing

trial.” 222 Ariz. at 17 ¶ 90, 213 P.3d at 166; see Anderson,

210 Ariz. at 348 ¶ 85, 111 P.3d at 390 (noting “the aggravation

and penalty phases were essentially a full-blown re-presentation

of the entire case”).

¶25 The federal constitution requires only that the jury

“render a reasoned, individualized sentencing determination

based on a death-eligible defendant’s record, personal

characteristics, and the circumstances of his crime.” Marsh,

548 U.S. at 174. As long as a state’s procedures satisfy this

requirement, the state “enjoys a range of discretion in imposing

the death penalty.” Id. Nothing about a trifurcated proceeding

under § 13-752(K) deprives a defendant of a fair trial or

reliable sentencing determination. Thus, the trifurcated

proceeding did not violate Prince’s constitutional rights.

B. Aggravation Phase

1. Exclusion of Jurors for Cause

¶26 Prince argues that the trial court improperly excluded
12
four jurors for cause, three because of their reservations about

the death penalty and one because of his out-of-state felony

conviction. We review a trial court’s strikes of potential

jurors for abuse of discretion. State v. Jones, 197 Ariz. 290,

302 ¶ 24, 4 P.3d 345, 357 (2000).

¶27 Prince contends that jurors 18, 32, and 66 were

improperly excluded because of their views on the death penalty.

The court may not strike a juror because he or she “voiced

general objections to the death penalty or expressed

conscientious or religious scruples against its infliction.”

Witherspoon v. Illinois, 391 U.S. 510, 522 (1968); accord State

v. Lynch, 225 Ariz. 27, 34-35 ¶ 26, 234 P.3d 595, 602-03 (2010).

The judge, however, may strike a juror whose views about capital

punishment “would prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.” Wainwright v. Witt, 469 U.S. 412,

433 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

The juror’s views “need not be proven with ‘unmistakable

clarity.’” State v. Ellison, 213 Ariz. 116, 137 ¶ 89, 140 P.3d

899, 920 (2006) (quoting Wainwright, 469 U.S. at 424). Rather,

in assessing whether to strike a juror, the judge must consider

“the entirety of [the juror’s] answers.” Lynch, 225 Ariz. at 35

¶ 28, 234 P.3d at 603.

¶28 On his written questionnaire, Juror 18 stated he did
13
not oppose the death penalty and indicated he did not think

capital punishment was imposed often enough. During voir dire,

however, the juror changed his position, stating, “I don’t

believe anybody has the right to put another person to death,”

and “I’m still wavering on it right now. It’s tearing me

apart.” Although the juror did not believe he could sentence

anyone except a terrorist to death, he also claimed he could

follow the jury instructions. But later, the juror twice stated

he did not think he could impose a death sentence.

¶29 The trial court did not err in striking Juror 18. We

have upheld strikes for cause when, as here, a juror expressed

clear reservations about the death penalty. E.g., Lynch, 225

Ariz. at 35 ¶¶ 27-28, 234 P.3d at 603; State v. Speer, 221 Ariz.

449, 455-56 ¶¶ 27-28, 212 P.3d 787, 793-94 (2009). And we have

upheld strikes when a juror is conflicted about imposing the

death penalty, as Juror 18 was. State v. Garcia, 224 Ariz. 1, 9

¶¶ 18-19, 226 P.3d 370, 378 (2010); Ellison, 213 Ariz. at 137-38

¶ 91, 140 P.3d at 920-21. Although Juror 18 said he could vote

to put a terrorist to death, a juror need not be against the

death penalty in every possible case to warrant dismissal for

cause. See Wainwright, 469 U.S. at 421; Lynch, 225 Ariz. at 35

¶¶ 27-28, 234 P.3d at 603.

¶30 Juror 32 stated that he opposed the death penalty

because of the possibility of putting an innocent person to
14
death, but indicated he could consider death in the case of a

serial killer. Despite the juror’s claims that he could follow

the court’s instructions, he also said it would be “tough” for

him to set aside his feelings about capital punishment. And

after the judge asked Juror 32 if he could consider the death

penalty as an option, he said it would be “hard” for him to do

so.

¶31 As with Juror 18, Juror 32 repeatedly expressed

reservations about his ability to consider the death penalty,

despite his statement that he could follow the court’s

instructions. The trial court did not abuse its discretion by

striking Juror 32.

¶32 On the written questionnaire, Juror 66 stated that she

opposed the death penalty except for crimes involving children

and “some well-thought-out crimes.” During voir dire, defense

counsel asked the juror if she could consider capital punishment

for the murder of a thirteen-year-old child, to which the juror

responded, “That’s a hard one. Basically, I don’t believe in

the death penalty.” The juror then indicated she could return a

death sentence, but it would be a “hard decision.”

¶33 When the prosecutor probed the juror’s definition of a

“well-thought-out crime,” the following exchange occurred:

[Prosecutor]: . . . Question 57, describe your views
on the death penalty. “Life imprisonment only, not
death except in some well-thought-out crimes.” I mean
15
 this is a case where the defendant has been found
guilty, having an argument with his wife, shooting his
stepdaughter and killing her and then shooting the
wife. Would that be your definition of a well-
thought-out crime?

[Juror 66]: That was an argument?

[Prosecutor]: They were arguing first for a lengthy
period of time. Then he had a gun.

[Juror 66]: No.

[Prosecutor]: What would you mean by that when you
said a well-thought-out crime?

[Juror 66]: Well, something that was done, thought out
for months in advance, something that when the time
was right.

[Prosecutor]: So there’s really advance planning?

[Juror 66]: Yes.

Moments later, the juror acknowledged that her views on the

death penalty would substantially impair her performance as a

juror. When the trial court probed the inconsistency in her

answers, Juror 66 claimed she could consider a death sentence,

but then told the prosecutor, “I really don’t think I could vote

for the death penalty.”

¶34 When a juror “equivocat[es] about whether [she] would

take [her] personal biases in the jury room[,]” the judge can

reasonably conclude that her views about the death penalty will

substantially impair her ability to carry out her duties as a

juror. Ellison, 213 Ariz. at 137 ¶ 89, 140 P.3d at 920

(quotation omitted). Viewing Juror 66’s answers as a whole, we
16
cannot say the trial court abused its discretion by striking

her.

¶35 Prince also contends the prosecutor asked improper

stakeout questions during his inquiry into Juror 66’s definition

of a “well-thought-out” crime. Stakeout questions “ask a juror

to speculate or precommit to how that juror might vote based on

any particular facts.” United States v. Fell, 372 F. Supp. 2d

766, 770 (D. Vt. 2005) (quotation omitted) (noting that “not all

case-specific questions are stake-out questions”). Here, the

prosecutor merely sought to determine whether Prince’s murder

fit the juror’s definition of a “well-thought-out crime,” and

thus determine whether that juror could consider the death

penalty. That questioning did not seek to precommit the juror

to a specific result. See Garcia, 224 Ariz. at 9 ¶ 16, 226 P.3d

at 378 (finding no error when prosecutor asked jurors “if they

could consider imposing a death sentence if a defendant had not

actually shot the victim” because the questions asked jurors “if

they could consider the death penalty in circumstances in which

it is permitted under Arizona law”). And even if it did, Prince

does not argue that the questioning constituted prosecutorial

misconduct or precluded the trial judge from striking Juror 66

for cause.

¶36 The trial judge excluded a fourth juror, Juror 62,

based on his felony conviction in Oklahoma. That juror
17
completed an eighteen-month prison sentence and said he was not

under the continuing supervision of the Oklahoma courts. He did

not know, however, if his civil rights had been restored.

Absent any such showing, the judge found Juror 62 ineligible for

jury service.

¶37 To qualify for jury service in Arizona, a person must

“[n]ever have been convicted of a felony, unless the juror’s

civil rights have been restored.” A.R.S § 21-201(3).

Similarly, under Title 13, A.R.S., “[a] conviction for a felony”

suspends various civil rights, including “[t]he right to serve

as a juror.” A.R.S. § 13-904(A)(3).

¶38 Prince argues that conviction of an out-of-state

felony does not bar jury service in Arizona. Section 13-105(18)

defines felony as “an offense for which a sentence to a term of

imprisonment in the custody of the state department of

corrections is authorized by any law of this state.” Prince

claims that § 13-105’s definition of “felony” as requiring

custody in Arizona applies to §§ 13-904 and 21-201 because both

statutes address the subject of juror disqualification based on

felony convictions. But § 13-105 limits its application to

“this title,” making Title 13’s definition of felony

inapplicable to a Title 21 statute.

¶39 Section 21-201 sets forth general qualifications for

jury service and reflects the policy that jurors should be
18
“citizens who uphold and obey the law.” State v. Bojorquez, 111

Ariz. 549, 555, 535 P.2d 6, 12 (1975). Applying Title 13’s

definition of felony to § 21-201 would disqualify from jury

service only those convicted of a felony under Arizona law and

exempt those convicted of a felony in federal court or another

state, which would undermine the policy behind § 21-201(3).

¶40 A juror convicted of an out-of-state felony whose

civil rights have not been restored is disqualified from jury

service by § 21-201(3). Because Juror 62 was a convicted felon

who did not aver that his civil rights had been restored, the

trial court did not abuse its discretion in striking him.

2. Testimony of Gun Expert

¶41 Prince argues that reading a transcript of the State’s

gun expert’s guilt-phase testimony to the aggravation-phase jury

violated his Confrontation Clause rights. After a juror asked

questions relating to the murder weapon, defense counsel

informed the court that those questions could be answered by the

gun expert. According to defense counsel, the parties

originally planned to stipulate to the reading of that witness’s

prior testimony. Although no such stipulation occurred, defense

counsel did not object when the gun expert’s guilt-phase

testimony was read to the jury. We therefore review Prince’s

claim for fundamental error. See State v. Henderson, 210 Ariz.

561, 567 ¶ 19, 115 P.3d 601, 607 (2005).
19
¶42 A defendant has a right to confront testimonial

hearsay evidence introduced to establish an aggravating factor.

State v. Tucker, 215 Ariz. 298, 315 ¶ 61, 160 P.3d 177, 194

(2007). Prior trial testimony is hearsay, Ariz. R. Evid.

804(b)(1), but admissible if (1) the declarant is unavailable,

and (2) “[t]he party against whom the former testimony is

offered . . . had the right and opportunity to cross-examine the

declarant with an interest and motive similar to that which the

party now has.” Ariz. R. Crim. P. 19.3(c)(1); accord State v.

Armstrong, 218 Ariz. 451, 460 ¶ 32, 189 P.3d 378, 387 (2008)

(citing Crawford v. Washington, 541 U.S. 36, 59 (2004)).

¶43 Even if reading the transcript violated the

Confrontation Clause (an issue we need not decide), Prince

cannot show prejudice. The gun expert’s testimony was

irrelevant to the (F)(9) aggravating factor (the ages of the

defendant and the victim) and did not directly relate to the

core (F)(6) issue: whether Cassandra consciously suffered

physical pain or mental anguish. Although the expert bolstered

Christine’s credibility by corroborating her testimony that

Prince fired the gun through the pillow, two other witnesses

also had testified to that fact.

¶44 Prince argues he was prejudiced because the gun-

expert’s testimony created confusion about whether Prince had

intended to commit suicide after he fled to a vacant apartment.
20
He now claims that issue was crucial to whether he could have

reasonably foreseen Cassandra’s suffering, an element of the

(F)(6) aggravator.4 Even if the expert’s testimony was relevant

to this issue, Prince cannot show prejudice because he did not

place his mental state at issue during the aggravation phase.

Neither he nor any other witness testified about his state of

mind on the night of the shooting. Prince also did not

introduce any expert testimony that his mental state made him

unable to reasonably foresee Cassandra’s mental anguish. Cf.

State v. Moody, 208 Ariz. 424, 472 ¶ 226, 94 P.3d 1119, 1167

(2004) (holding that the (F)(6) aggravator was not established

beyond a reasonable doubt when “evidence was presented that [the

defendant] was in a ‘dissociated state’ due to psychosis”)

(emphasis added). Therefore, Prince has not established

fundamental error.

3. Waiver of Right to Testify

¶45 Prince argues that the trial judge’s failure to obtain

an on-the-record waiver of his right to testify during both the

4
In the vacant apartment to which Prince fled after the
shootings, police found the murder weapon, an expended shell
casing, a six-inch piece of wire, and three damaged rounds of
ammunition. The gun expert testified that the gun failed to
feed on several occasions during his test fires, but that did
not damage the bullets, unlike the bullets found in the vacant
unit. According to Prince, his inability to cross-examine the
expert in the aggravation phase limited his ability to contend
that he was, in fact, suicidal.

21
aggravation and penalty phases violated his constitutional

rights. A trial court need not inquire on the record whether a

defendant has waived his right to testify. State v.

Gulbrandson, 184 Ariz. 46, 64-65, 906 P.2d 579, 597-98 (1995);

State v. Allie, 147 Ariz. 320, 328, 710 P.2d 430, 438 (1985).

“[I]n an appropriate case,” however, “it may be prudent for a

trial court” to do so. Gulbrandson, 184 Ariz. at 64-65, 906

P.2d at 597-98 (declining to require an on-the-record waiver

when defendant stated to trial court “he wanted to testify at

the trial, but his lawyer told him it was too late”).

¶46 Prince argues an on-the-record waiver was required

because of his low IQ and his multiple motions to change

counsel, which he claims indicated a strained attorney-client

relationship. But throughout the trial, Prince never hesitated

to assert his legal rights or make objections. He frequently

filed pro se motions to change counsel, requested discovery

materials from his lawyers, and filed an “inquiry” with the

State Bar against one of his lawyers. In addition, Prince

testified during the guilt phase, and nothing in the record

suggests he was led to believe he could not also testify in the

later phases. Had Prince wanted to testify in the aggravation

or penalty phase, he could have expressed that desire, just as

he made his other complaints known to the court. Cf. State v.

Tillery, 107 Ariz. 34, 37, 481 P.2d 271, 274 (1971) (“Were
22
defendant’s desires to testify in his own behalf as strong and

unrelent[ing] as he now claims they were, he would not have

maintained his silence throughout the entire trial. He might

very easily have directed his request to the court or made

motion to have his attorney removed.”).

¶47 Because Prince did not invoke his right to testify, he

“cannot now be heard to complain.” Allie, 147 Ariz. at 328, 710

P.2d at 438. The trial court did not err.

4. Constitutionality of (F)(6) Jury Instruction

¶48 Prince argues that the jury instruction on especial

cruelty, A.R.S. § 13-751(F)(6), was unconstitutionally vague and

failed to properly channel the jury’s sentencing discretion.

Because he did not argue that below, Prince must show

fundamental error. State v. Gomez, 211 Ariz. 494, 499 ¶ 20, 123

P.3d 1131, 1136 (2005).

¶49 Although the (F)(6) aggravator is facially vague, it

“may be remedied with appropriate narrowing instructions.”

Tucker, 215 Ariz. at 310 ¶ 28, 160 P.3d at 189; accord State v.

Hargrave, 225 Ariz. 1, 13 ¶ 43, 234 P.3d 569, 581 (2010). The

instructions must “sufficiently narrow[]” the statutory terms,

Tucker, 215 Ariz. at 310 ¶ 28, 160 P.3d at 189, such that the

sentencer has “sufficient guidance.” Walton v. Arizona, 497

U.S. 639, 655 (1990), overruled on other grounds by Ring II, 536

U.S. at 589.
23
¶50 The trial judge instructed the jury on especial

cruelty as follows:

Concerning this aggravating circumstance, all first-
degree murders are to some extent . . . cruel . . . .
However, this aggravating circumstance cannot be found
to exist unless the State has proven beyond a
reasonable doubt that the murder was “especially”
cruel . . . . “Especially” means “unusually great or
significant.” In other words, the murder must have
been committed in such a way as to set the Defendant’s
acts apart from the norm of first-degree murder.

. . . .

The term “cruel” focuses on the victim’s mental
anguish. To find that the murder was committed in an
“especially” cruel manner you must find that the
victim consciously suffered extreme mental distress or
anguish prior to death. A murder is “especially”
cruel when there has been the infliction of mental
suffering in an “especially” wanton and insensitive or
vindictive manner. The Defendant must know or should
have known that the victim would suffer anguish.

A finding of “cruelty” requires conclusive evidence
that the victim was conscious during the infliction of
the violence and experienced significant uncertainty
as to his or her ultimate fate. The passage of time
is not determinative.

¶51 Prince claims that the reference to “the norm of

first-degree murder” is vague because juries have no experience

with murder and therefore no context in which to understand the

“norm” of first degree murder. Although the instruction’s “norm

of first-degree murder” language is often urged by defendants,

who can certainly make that point in closing arguments, it is

neither necessary nor particularly helpful in a jury

instruction. See State v. Bocharski, 218 Ariz. 476, 487-88
24
¶¶ 47-50, 189 P.3d 403, 414-15 (2008). But we have repeatedly

upheld jury instructions using that phrase, and its inclusion in

the (F)(6) instruction here was not fundamental error. State v.

McCray, 218 Ariz. 252, 258-59 ¶ 26 n.3, 183 P.3d 503, 509-10

(2008); State v. Andriano, 215 Ariz. 497, 506 ¶¶ 42-43, 161 P.3d

540, 549 (2007); Tucker, 215 Ariz. at 310-11 ¶¶ 30, 33, 160 P.3d

at 189-90. Prince also argues that the phrase “especially

wanton and insensitive” is vague, but we have approved jury

instructions using that language as well. State v. Chappell,

225 Ariz. 229, 237-38 ¶ 27 & n.6, 236 P.3d 1176, 1184-85 & n.6

(2010); Anderson, 210 Ariz. at 352-53 ¶ 111 & n.19, 111 P.3d at

394-95 & n.19. Viewed as a whole, the instruction sufficiently

narrowed the (F)(6) aggravator and, therefore, Prince has not

established fundamental error.

¶52 Prince next argues that the trial court erred by

denying his request to give the following instruction:

The passage of time is not determinative, but the
length of time during which the victim contemplated
her fate affects whether the mental anguish is
sufficient to bring the first degree murder of the
victim within that group of first degree murders that
is especially cruel.

Because most murders involve some period during which the victim

experiences fear, Prince claims, his requested instruction was

necessary to channel the jury’s discretion when, as here, the

events occurred within a short time.

25
¶53 The judge did not err by denying Prince’s requested

instruction. We have repeatedly approved (F)(6) instructions

that do not contain the language Prince requested. E.g.,

Tucker, 215 Ariz. at 310-11 ¶¶ 30-31, 160 P.3d at 189-90; State

v. Cromwell, 211 Ariz. 181, 189 ¶ 42, 119 P.3d 448, 456 (2005);

Anderson, 210 Ariz. at 352-53 ¶¶ 111, 113 & n.19, 111 P.3d at

394-95 & n.19. The instruction in Anderson contained only the

sentence “The passage of time is not determinative,” the same

instruction given here. 210 Ariz. at 352 ¶ 111 n.19, 111 P.3d

at 394 n.19. Although the passage of time is a relevant factor

for evaluating the victim’s uncertainty about her fate, see

State v. Snelling, 225 Ariz. 182, 188 ¶ 27, 236 P.3d 409, 415

(2010), we have never required an instruction to this effect.

More importantly, although proof that a victim experienced

uncertainty about her fate may be sufficient, it is not a

necessary element to establish that the victim consciously

experienced mental pain. See Tucker, 215 Ariz. at 311 ¶ 33, 160

P.3d at 190; Ellison, 213 Ariz. at 142 ¶ 120, 140 P.3d at 925.

¶54 Notably, the instruction required the jury to find

“extreme mental distress,” a phrasing that was more favorable to

Prince than our case law otherwise requires. See Chappell, 225

Ariz. at 237-38 ¶ 27, 236 P.3d at 1184-85 (stating “the mental

or physical pain used to establish the (F)(6) aggravator” need

not be “extreme”). The jury instructions adequately narrowed
26
the (F)(6) aggravator and properly channeled the jury’s

sentencing discretion.

5. Sleeping Juror

¶55 Prince argues the trial court erroneously denied his

motion for mistrial based on a juror sleeping during the

aggravation phase. When the gun expert’s guilt-phase testimony

was read to the jury, defense counsel informed the court that

Juror 16 was asleep. The judge gave defense counsel an

opportunity to designate that juror as an alternate, but counsel

deferred that decision until the next day. Defense counsel

never raised the issue again, however, and Juror 16 was among

the deliberating jurors who found the two aggravators. During

the first penalty phase (which ended with a hung jury), this

juror fell asleep repeatedly and the parties agreed to replace

him with an alternate. Prince then moved for a mistrial based

on the juror sleeping during the aggravation phase, which the

judge denied.

¶56 Because Prince failed to take curative action to

remove Juror 16 when he had the opportunity to do so during the

aggravation phase, he must show that the trial court committed

fundamental error in denying the motion for a mistrial. See

Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607; cf. State v.

Spratt, 126 Ariz. 184, 187-88, 613 P.2d 848, 851-52 (App. 1980)

(concluding defendant waived any error caused by a sleeping
27
juror when counsel “refus[ed] to take curative action” such as

“enter[ing] into any stipulation concerning the sleeping juror”

or making a motion).

¶57 Juror misconduct warrants a new trial if “the defense

shows actual prejudice or if prejudice may be fairly presumed

from the facts.” State v. Miller, 178 Ariz. 555, 558, 875 P.2d

788, 791 (1994) (emphasis omitted). A juror’s “mere falling

asleep for a short time . . . does not of itself constitute a

sufficient cause for a new trial.” Whiting v. State, 516 N.E.2d

1067, 1068 (Ind. 1987) (quotation omitted). Nor is reversal

required when, as here, no evidence shows that the sleeping

juror “missed large portions of the trial or that the portions

missed were particularly critical.” United States v. Freitag,

230 F.3d 1019, 1023 (7th Cir. 2000).

¶58 No error, fundamental or otherwise, occurred here.

Prince points to no specific prejudice that resulted from the

juror falling asleep. Juror 16 nodded off just once during the

aggravation phase, when the gun expert’s prior testimony was

read. Nothing indicates that the testimony was particularly

critical (see supra ¶¶ 43-44) or that Juror 16 missed large

portions of the trial. Thus, prejudice may not be presumed, and

the trial judge did not err by denying Prince’s motion for a

mistrial.

C. Penalty Phase
28
1. Caldwell Violation

¶59 Prince claims that the second penalty-phase proceeding

violated Caldwell v. Mississippi, 472 U.S. 320 (1985), in two

ways. First, he contends the penalty-phase jury abdicated its

responsibility for imposing a death sentence to the aggravation-

phase jury. Because Prince did not argue this at trial, we

review for fundamental error.

¶60 A death sentence must be vacated if the sentencer was

“led to believe that the responsibility for determining the

appropriateness of the defendant’s death rests elsewhere.” Id.

at 328-29. We have concluded that use of different juries for

guilt and sentencing phases does not violate Caldwell as long as

the sentencing jury is not misled about its role. E.g., State

v. Dann, 220 Ariz. 351, 360-61 ¶¶ 29-30, 207 P.3d 604, 613-14

(2009); Bocharski, 218 Ariz. at 483 ¶¶ 19-20, 189 P.3d at 410;

cf. Anderson, 210 Ariz. at 347-48 ¶¶ 81-86, 111 P.3d at 389-90

(noting a defendant has no absolute right to have the guilt-

phase jury also determine the sentence). Similarly, we have

held that use of different juries for the aggravation and

penalty phases does not violate Caldwell. Moore, 222 Ariz. at

18 ¶ 93, 213 P.3d at 167 (stating the bifurcation of the

sentencing phase into two different juries “is not substantively

different from the bifurcation sanctioned under” Dann and

Bocharski).
29
¶61 Prince distinguishes Moore because the penalty-phase

jury in that case retried an aggravating factor, making it “no

different from the aggravation phase jury” for Caldwell

purposes. But Moore approved bifurcation of the aggravation and

penalty phases and did not suggest that bifurcation is

permissible only if the penalty-phase jury also retries an

aggravating factor. Moreover, the record does not indicate that

the penalty-phase jurors were misled or confused about their

role or otherwise abdicated their responsibility for Prince’s

death sentence. To the contrary, the judge instructed that jury

that it alone decided Prince’s fate, stating, “Your decision is

not a recommendation. Your decision will be binding. If your

verdict is that Mr. Prince should be sentenced to death, he will

be sentenced to death.” That instruction “convey[s] the gravity

of the [penalty] jurors’ task.” Hargrave, 225 Ariz. at 14 ¶ 49,

234 P.3d at 582; accord Garcia, 224 Ariz. at 17 ¶ 73, 226 P.3d

at 386. Bifurcating the aggravation and penalty phases thus did

not violate Caldwell.

¶62 Second, Prince argues the trial court violated

Caldwell by refusing his request for the following instruction

before the second penalty phase:

Your individual decision is not a recommendation.
Your individual decision will be binding. If there is
unanimous agreement of individual decisions for a
sentence of death then Mr. Prince will be sentenced to
death and you must assume that he will be executed.
30
 Your verdict cannot be changed by me or on appeal. No
one can change or reverse your ultimate determination
on the appropriate sentence.

¶63 In Caldwell, the Supreme Court vacated a death

sentence when the prosecutor, in closing argument, told the jury

its decision “[was] automatically reviewable by the Supreme

Court.” 472 U.S. at 325-26, 341. “[T]he uncorrected suggestion

that the responsibility for any ultimate determination of death

will rest with others” violates the Eighth Amendment. Id. at

333. The Supreme Court, however, later made Caldwell “relevant

only to certain types of comment[s]-those that mislead the jury

as to its role in the sentencing process in a way that allows

the jury to feel less responsible than it should for the

sentencing decision.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994)

(quotation omitted).

¶64 Prince acknowledges that Caldwell applies only to

affirmative comments that mislead the jury. See State v.

Martinez, 218 Ariz. 421, 429 ¶ 33, 189 P.3d 348, 356 (2008). He

nevertheless argues that “silence regarding appellate processes

may violate Caldwell,” and that “an affirmative statement should

be made that appellate review could lead to a reversal of the

[death] penalty only in the most unlikely circumstances” because

jurors can easily access information that could mislead them

about the appellate process. No case, however, requires a jury

instruction that explains the intricacies or likely results of
31
the appellate process.

2. Victim Impact Evidence

¶65 Arizona permits victim impact evidence during the

penalty phase of capital sentencing proceedings. See A.R.S.

§ 13-752(R). Although the Eighth Amendment “erects no per se

bar” to the admission of such evidence, the Fourteenth

Amendment’s Due Process Clause prohibits victim impact evidence

that “is so unduly prejudicial that it renders the trial

fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825-26

(1991) (emphasis omitted); accord Dann, 220 Ariz. at 369 ¶ 98,

207 P.3d at 622. Additionally, a victim may not recommend a

particular sentence. Ellison, 213 Ariz. at 141 ¶ 111, 140 P.3d

at 924.

¶66 During the first penalty phase, Christine made a

victim impact statement to the jury pursuant to § 13-752(R).

After that jury deadlocked on the appropriate penalty and a new

jury was convened for the second penalty phase, Christine did

not appear, but a victim advocate read her statement verbatim to

the second penalty-phase jury.

¶67 Prince argues that § 13-752(R) violates the Eighth

Amendment because it does not prohibit victim recommendations

for a sentence or other victim impact evidence that renders the

trial fundamentally unfair. But Payne, Dann, and Ellison

establish that such evidence is not admissible under § 13-
32
752(R). And Christine did not try to recommend or otherwise

suggest a particular sentence.

¶68 Prince also asserts that victim impact evidence is

irrelevant in the penalty phase because mitigation focuses on

the defendant rather than the victim or the impact of the

victim’s death on others. We have repeatedly rejected that

argument. See, e.g., Bocharski, 218 Ariz. at 488 ¶ 51, 189 P.3d

at 415 (citing Ellison, 213 Ariz. at 140-41 ¶ 111, 140 P.3d at

923-24); see also Payne, 501 U.S. at 825 (upholding victim

impact evidence as a method of “informing the sentencing

authority about the specific harm caused by the crime,” thus

allowing “the jury to assess meaningfully the defendant’s moral

culpability”).

¶69 Prince further contends that § 13-752(R)

unconstitutionally permits evidence that “infus[es] irrelevant

emotions into the proceeding.” We have rejected that argument

too. E.g., Dann, 220 Ariz. at 369-70 ¶ 101, 207 P.3d at 622-23.

Moreover, the trial court here instructed the jury to consider

the victim impact evidence “to the extent it rebuts mitigation,”

but not “as a new aggravating circumstance.” See Bocharski, 218

Ariz. at 488 ¶ 53, 189 P.3d at 415 (finding no Eighth Amendment

violation when jurors instructed to consider victim impact

statement “only to rebut the mitigation evidence”).

¶70 Next, Prince claims his Confrontation Clause rights
33
were violated when the victim advocate read Christine’s

statement to the second penalty-phase jury. Because

confrontation rights do not extend to the penalty phase under

either the Arizona or federal Constitution, no Confrontation

Clause violation occurs when a third party reads a victim impact

statement to the jury during the penalty phase. Tucker, 215

Ariz. at 320 ¶ 94, 160 P.3d at 199.

¶71 Finally, Prince asserts that Christine’s statement was

unduly prejudicial in part because it was too long, comprising

eight pages of transcript compared to the five-sentence

statement in Payne. The Court in Payne, however, did not

suggest its result turned on the short length of the statement.

Indeed, courts have upheld much longer victim impact statements

against claims of undue prejudice. E.g., United States v.

Nelson, 347 F.3d 701, 713-14 (8th Cir. 2003) (six statements

totaling 101 pages); State v. Taylor, 838 So. 2d 729, 753 (La.

2003) (eight and one-half pages).

¶72 Prince also claims that several of Christine’s remarks

were unduly prejudicial. Christine stated:

Nine and a half years later and we’re all still going
through the same pain and trying to just figure out
how to get by another day. For me, because I was
there every single moment of that night is in my head
24 hours a day. I can still feel the stubble on my
hands and my face. I can hear her crying when he
threw her across the floor. I can hear, oh, the sound
of her last breaths. I can hear her heart beating

34
 when it was stopping. I can smell it. It never goes
away, twenty-four hours a day, every single day.

¶73 Prince argues that the jurors could have construed

Christine’s reference to “nine and a half years later” as a plea

for the death penalty. But that statement was in the context of

Christine describing her persistent pain due to the loss of her

daughter. Prince also contends that Christine improperly

described details of the offense, but we have upheld similar

comments. See State v. Glassel, 211 Ariz. 33, 53-54 ¶¶ 79, 86,

116 P.3d 1193, 1213-14 (2005); cf. Simmons v. Bowersox, 235 F.3d

1124, 1134-35 (8th Cir. 2001) (finding no undue prejudice when

statement speculated at length about the victim’s thoughts and

feelings during the murder). Prince has not shown undue

prejudice.

¶74 In her statement, Christine also spoke of Cassandra’s

ambitions to become a doctor and practice on an Indian

reservation. Prince contends that a victim impact statement may

not describe the murder victim’s future plans, citing Conover v.

State, 933 P.2d 904, 921 (Okla. Crim. App. 1997). Conover is

inapposite, however, because its holding was based solely on

Oklahoma’s statute, not due process considerations. Moreover, a

victim impact statement that “show[s] . . . [the] victim’s

uniqueness as an individual human being” is permissible. Payne,

501 U.S. at 823 (quotation omitted).

35
¶75 Courts routinely uphold statements that touch on the

victim’s future plans. E.g., Raulerson v. State, 491 S.E.2d

791, 801-02 (Ga. 1997) (upholding statement describing victims’

plans to marry and attend college); State v. Rocheville, 425

S.E.2d 32, 36 (S.C. 1993); State v. Gentry, 888 P.2d 1105, 1113,

1134 (Wash. 1995) (upholding statement from victim’s father

describing the twelve-year-old victim’s plans for the future).

Here, Christine did not describe Cassandra’s ambitions at length

or in an unduly prejudicial manner.

¶76 Finally, Prince objects to Christine’s description of

the impact Cassandra’s death had on the family. Once again,

however, we have upheld similar comments. See Armstrong, 218

Ariz. at 463 ¶¶ 52-53, 189 P.3d at 390 (“[The victim] ended her

statement by describing how the murders negatively affected her

family and [her son] in particular because he lacked a fatherly

figure in his life.”); State v. Carreon, 210 Ariz. 54, 72 ¶¶ 91-

93, 107 P.3d 900, 918 (2005) (upholding statements that the

victim’s daughter “almost committed suicide because she felt

blamed” and that the victim’s son was “not going to school,

hanging out with the wrong crowd [and] getting into drugs”).

3. Jury Instructions on Mitigation

¶77 Prince argues that the jury instructions on mitigation

given during the second penalty phase were inconsistent and

confusing. We review de novo whether jury instructions
36
correctly state the law, State v. Gallardo, 225 Ariz. 560, 567

¶ 30, 242 P.3d 159, 166 (2010), “read[ing] the jury instructions

as a whole to ensure that the jury receives the information it

needs to arrive at a legally correct decision,” Granville, 211

Ariz. at 471 ¶ 8, 123 P.3d at 665 (citing Kauffman v. Schroeder,

116 Ariz. 104, 106, 568 P.2d 411, 413 (1977)).

¶78 At the close of the penalty phase, the judge

instructed the jury that “[m]itigating circumstances may be

found from any evidence presented during this hearing.” The

judge then gave more specific instructions regarding mitigation:

Mitigating circumstances are any factors that are a
basis for a life sentence instead of a death sentence,
so long as they relate to any sympathetic or other
aspect of Mr. Prince’s character, propensity, history
or record, or circumstances of the offense.

Mitigating circumstances are not an excuse or
justification for the offense, but are factors that in
fairness or mercy may reduce Mr. Prince’s moral
culpability.

Mitigating circumstances may be offered by the defense
or the State or be apparent from the evidence
presented at this hearing. You are not required to
find that there is a connection between a mitigating
circumstance and the crime committed in order to
consider the mitigation evidence.

. . . .

While all 12 of you must unanimously agree regarding
the appropriate sentence, you do not need to
unanimously agree on a particular mitigating
circumstance. Each one of you must decide
individually whether any mitigating circumstance
exists.

37
 The defense bears the burden of proving the existence
of any mitigating circumstance by a preponderance of
the evidence. That is, although the defense need not
prove its existence beyond a reasonable doubt, the
defense must convince you by the evidence presented
that it is more probably true than not true that such
a mitigating circumstance exists.

¶79 Prince concedes that these instructions correctly

stated the law, but argues they were likely to confuse the jury.

Although the jury was instructed that the defense has the burden

of proving the existence of mitigation, the jury was also told

it could consider any evidence, even if adduced by the State, in

making its final determination. According to Prince, “the

interplay” between these instructions gave him the burden of

persuasion, but not the burden of production, which is

“inconceivable to the lay person not educated in the law.”

Prince asserts that the confusing instructions could prompt “the

average juror [to] simply ignore any evidence that was not

affirmatively introduced by the defense.” Because Prince did

not object on this ground at trial, we review for fundamental

error only. See State v. Roque, 213 Ariz. 193, 225 ¶ 134, 141

P.3d 368, 400 (2006).

¶80 No error occurred, fundamental or otherwise. Jurors

are presumed to follow jury instructions. State v. LeBlanc, 186

Ariz. 437, 439, 924 P.2d 441, 443 (1996). Nothing in the record

suggests that the final penalty-phase jurors were confused or

failed to consider any evidence that could have been mitigating.
38
Additionally, both instructions find support in Supreme Court

case law. See Marsh, 548 U.S. at 170-71 (allowing states to

place on defendants the burden of proving mitigating

circumstances); Skipper v. South Carolina, 476 U.S. 1, 4 (1986)

(“[T]he sentencer may not refuse to consider or be precluded

from considering any relevant mitigating evidence.”) (quotation

omitted).

4. Double-Counting of Cassandra’s Age

¶81 Prince claims that because no special verdict form was

used, the final penalty jury might have improperly considered

Cassandra’s age twice in imposing the death sentence.5 Although

a specific fact, such as the victim’s age, can establish two

aggravating factors, that fact cannot be “weighed ‘twice in

balancing aggravating and mitigating circumstances.’” Chappell,

225 Ariz. at 241 ¶ 48, 236 P.3d at 1188 (quoting State v.

Velazquez, 216 Ariz. 300, 307 ¶ 21, 166 P.3d 91, 98 (2007)). In

Chappell, the judge instructed the jury not to “consider twice

any fact or aspect of the offense.” Id. at ¶ 50; see also

Velazquez, 216 Ariz. at 307 ¶ 23, 166 P.3d at 98.

¶82 The trial court here did not instruct the jury to

refrain from counting Cassandra’s age twice. But unlike

5
Prince raises this point as a reason to set aside the
especial cruelty finding on independent review, but his
contention is better viewed as a separate point of error.

39
Velazquez, Prince did not request a specific jury instruction on

this point. Indeed, Prince never raised the double-counting

issue at any time. Thus, fundamental error review applies. See

Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶83 Prince cannot show error, let alone fundamental error.

As he acknowledges, “it is unknown, and indeed unknowable,

whether [Cassandra’s] age was counted twice in imposing the

death sentence.” But even if the trial court erred by failing

to specifically instruct the jury on this point or by not using

a special verdict form, no prejudice resulted. The court’s

instruction defining the (F)(6) especial cruelty aggravator did

not mention the victim’s age. Nor did the prosecutor suggest

that the victim’s age is a factor in the (F)(6) analysis, unlike

the situation presented in Chappell.

D. Prosecutorial Misconduct

¶84 Prince alleges several instances of prosecutorial

misconduct. We will reverse a conviction because of

prosecutorial misconduct if “(1) misconduct is indeed present;

and (2) a reasonable likelihood exists that the misconduct could

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

fair trial.” Anderson, 210 Ariz. at 340 ¶ 45, 111 P.3d at 382

(quotation omitted). Because Prince never objected or moved for

a mistrial on grounds of prosecutorial misconduct, we review his

claims for fundamental error. Roque, 213 Ariz. at 228 ¶ 154,
40
141 P.3d at 403.

¶85 After shooting Cassandra, Prince shot Christine in the

lower jaw. Prince claims that the prosecutor improperly

questioned Christine about her medical condition during the

aggravation phase. At the beginning of her testimony, the

prosecutor sought to establish how Christine’s “physical

condition . . . might relate to [her] testimony.” He asked

Christine about her current medical condition, and she responded

that she had hepatitis C and “bullet and bone fragments in [her]

brain” that may be lethal if they move. After questioning

Christine about the twenty-six medications she was taking, the

prosecutor asked whether her medical condition affected her

“memory or ability to testify,” and she said it did not.

Moments later, Christine started crying, and the prosecutor then

asked, “Do you think it’s the medication that’s making you cry?”

Christine said no but also stated, “Because I sat for the last

nine years dealing with this and I thought it was over.” The

judge sustained defense counsel’s objection and instructed the

jury to disregard that testimony.

¶86 Later, as Christine described the shootings, the

prosecutor again asked about Christine’s injuries, and after

defense counsel asked to approach the bench, the prosecutor

stated he would “move off of that area.” The prosecutor,

however, ended his direct examination with more questions about
41
Christine’s injuries, asking her where the bullet hit her and

how many surgeries she had, to which the answer was forty-six.

¶87 The prosecutor’s initial questions about Christine’s

health were not improper because they related to Christine’s

ability to recall events and testify. And even if the

prosecutor’s other questions about Christine’s health were

improper, Prince has not shown prejudice. His claim that

questions about Christine’s medical condition induced the jury

to find Cassandra’s murder exceptionally cruel is speculative at

best. Moreover, the trial court instructed the jury to

disregard any questions to which objections were sustained, and

“not to be swayed by mere sentiment, conjecture, sympathy,

passion, prejudice, public opinion or public feeling.” Those

instructions “sufficiently countered any negative impact” the

prosecutor’s questions might have had on the jury. See State v.

Atwood, 171 Ariz. 576, 609, 832 P.2d 593, 626 (1992), overruled

on other grounds by State v. Nordstrom, 200 Ariz. 229, 241 ¶ 25,

25 P.3d 717, 729 (2001).

¶88 Prince alleges that, during the second penalty phase,

the prosecutor improperly used the term “excuse” during his

questioning of both psychiatric experts. On cross-examination

of Prince’s expert, the prosecutor asked whether Prince’s

molestation as a teenager was “an excuse for what he did” and

whether the jury was “supposed to forgive [Prince] just –
42
because he got mad all the time[.]” Defense counsel promptly

objected, claiming the prosecutor’s use of the term “excuse”

implied an improper standard regarding mitigation. The judge

sustained the objection. The next day, the prosecutor similarly

questioned the State’s expert, asking “do we normally look at

antisocial personality disorder as an excuse for commission of a

crime.” Once again, the judge sustained defense counsel’s

objection.

¶89 Prince cannot show fundamental error. Even if the

prosecutor’s questions misstated the standard governing

mitigation, the trial court immediately corrected the error by

sustaining Prince’s objections and instructing the jury to

disregard any question and answer for which the court sustained

an objection. Additionally, the court instructed the jury

extensively about how to assess mitigation, stating

“[m]itigating circumstances are not an excuse or justification

for the offense.” Any confusion about the applicable standard

was cured by the jury instructions. See State v. Newell, 212

Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006) (stating jurors

are presumed to follow instructions).

¶90 During the prosecutor’s second penalty-phase closing

argument, he stated, “This guy’s bad temper doesn’t – is not

mitigation that’s sufficiently substantial to call for leniency.

It should be aggravation. [Prince] should have learned not to
43
be blowing his stack like that.” Although the prosecutor

misstated the law regarding aggravation, see A.R.S. § 13-752(K)

(stating the second penalty-phase jury shall not retry

aggravation), the error was not fundamental. After the judge

sustained defense counsel’s subsequent objection, the prosecutor

immediately corrected himself, alleviating any prejudice caused

by his misstatement. Additionally, the judge instructed the

jury that two aggravating factors had already been found and

that the lawyers’ closing arguments were not evidence, negating

the remark’s effect. See State v. Morris, 215 Ariz. 324, 336-37

¶ 55, 160 P.3d 203, 215-16 (2007); Anderson, 210 Ariz. at 341-42

¶ 50, 111 P.3d at 383-84.

¶91 Finally, Prince claims the prosecutor improperly said

during the second penalty-phase closing argument that no

connection existed between Prince having previously been

molested and the crime:

[The molestation] was damaging to him. It created
this sexual identity crisis for him. It probably was
carried over all the way until he was arrested for
this crime. That was a problem for him. But you may
want to consider what does that have to do with
killing a 13-year-old girl?

This argument, however, was not improper. Although a connection

between a defendant’s proffered mitigation and the crime is not

required, “the state may fairly argue that the lack of a nexus

to the crime diminishes the weight to be given alleged

44
mitigation.” State v. Villalobos, 225 Ariz. 74, 83 ¶ 39, 235

P.3d 227, 236 (2010). Prince thus has not established

fundamental error resulting from any of the incidents of alleged

misconduct.

¶92 Even if any individual instances of prosecutorial

misconduct do not warrant reversal, we also consider whether

“persistent and pervasive misconduct occurred” and “the

cumulative effect.” Morris, 215 Ariz. at 339 ¶ 67, 160 P.3d at

218 (quotation omitted). The incidents discussed above,

however, do not amount to persistent and pervasive misconduct

that deprived Prince of a fair trial, particularly in view of

the trial court’s sustaining defense objections and giving

curative instructions to the jury.

III. INDEPENDENT REVIEW

¶93 Because Prince committed the murder before August 1,

2002, we independently review the jury’s findings on

“aggravation and mitigation and the propriety of the death

sentence.” A.R.S. § 13-755(A)-(C); see 2002 Ariz. Sess. Laws,

ch. 1, § 7 (5th Spec. Sess.). We review the record de novo and

do not defer to the jury’s findings or decisions. Newell, 212

Ariz. at 405 ¶ 82, 132 P.3d at 849.

¶94 In our review, we determine whether the evidence

supports the aggravating circumstances beyond a reasonable

45
doubt.6 Anderson, 210 Ariz. at 351 ¶ 104, 111 P.3d at 393. We

“consider the quality and the strength, not simply the number,

of aggravating and mitigating factors.” State v. Womble, 225

Ariz. 91, 103 ¶ 50, 235 P.3d 244, 256 (2010) (quoting State v.

Kiles (Kiles II), 222 Ariz. 25, 38 ¶ 62, 213 P.3d 174, 187

(2009)). Although we do not require a nexus between the

mitigating factors and the crime, the defendant’s failure to

establish a causal connection “may be considered in assessing

the quality and strength of the mitigation evidence.” Newell,

212 Ariz. at 405 ¶ 82, 132 P.3d at 849; accord Ellison, 213

Ariz. at 144 ¶ 132, 140 P.3d at 927.

¶95 If we find the mitigation “sufficiently substantial to

warrant leniency, then we must impose a life sentence.” Newell,

212 Ariz. at 405 ¶ 81, 132 P.3d at 849 (quotation omitted).

Otherwise, we must affirm the death sentence. Id.

A. Aggravating Factors

1. Cassandra’s Age – A.R.S. § 13-751(F)(9)

¶96 Prince was twenty-six and Cassandra thirteen years old

6
Our independent review of the aggravating circumstances is
limited to the evidence presented to the jury during the
aggravation phase. Therefore, we do not consider evidence
presented exclusively to the guilt-phase jury, the first, post-
remand jury during the penalty phase, or the second penalty-
phase jury. See Snelling, 225 Ariz. at 187 ¶ 23, 236 P.3d at
414; cf. Ellison, 213 Ariz. at 142 ¶ 121 n.19, 140 P.3d at 925
n.19 (declining on independent review to consider evidence
presented only to the guilt-phase jury and not to the sentencing
jury).
46
when he murdered her. The State produced sufficient evidence to

prove this uncontested aggravator.

2. Especial Cruelty – A.R.S. § 13-751(F)(6)

¶97 To show that a murder is especially cruel, the state

must prove that “the victim consciously experienced physical or

mental pain prior to death, and the defendant knew or should

have known that suffering would occur.” Snelling, 225 Ariz. at

188 ¶ 25, 236 P.3d at 415 (quotation omitted). We “examine the

entire murder transaction and not simply the final act that

killed the victim.” Ellison, 213 Ariz. at 142 ¶ 119, 140 P.3d

at 925 (alteration and quotation omitted).

¶98 We have found mental anguish when a victim hears the

assailant discuss the impending murder, id. at ¶ 121 (victims

heard one assailant order the other to kill one victim); State

v. Libberton, 141 Ariz. 132, 139, 685 P.2d 1284, 1291 (1984)

(victim heard the assailants discuss killing him), or when the

victim experiences “uncertainty about her ultimate fate,”

Hargrave, 225 Ariz. at 17 ¶ 70, 234 P.3d at 585 (quoting State

v. Kiles (Kiles I), 175 Ariz. 358, 371, 857 P.2d, 1212, 1225

(1993)). The length of time during which the victim

contemplates her fate may affect whether the victim’s mental

anguish is sufficient to support a finding of especial cruelty.7

7
We have found especial cruelty when the victim suffered
mental pain for a very short time. Chappell, 225 Ariz. at 235
47
Prince II, 206 Ariz. at 27 ¶ 8, 75 P.3d at 117; cf. Snelling,

225 Ariz. at 188-89 ¶¶ 29, 32, 236 P.3d at 415-16 (setting aside

cruelty finding when “very little time elapsed between [the

victim’s] initially seeing [the defendant] and the murder”);

State v. Soto-Fong, 187 Ariz. 186, 204, 928 P.2d 610, 628 (1996)

(finding time of contemplation insufficient to support cruelty

when the victims were killed in rapid succession).

¶99 The evidence establishes beyond a reasonable doubt

that Cassandra experienced uncertainty about her fate, feared

for her life, and consciously suffered mental anguish before

being shot. On the night of the murder, Cassandra saw and heard

Prince attack and savagely beat her mother in the family’s

apartment. Cassandra looked “scared.” She stood beside

Christine in the living room as Prince, gun in hand, screamed

and threatened to kill the entire family. He locked a sliding

glass door to prevent anyone from leaving. When Cassandra tried

to run for help, Prince threw her violently to the floor. She

was crying, “terrified,” and “scared” as she said to Christine,

“Mama, mama. What are we gonna do, mama?” At that point,

Cassandra would have known that she could not escape Prince’s

¶ 12, 236 P.3d at 1182 (finding sufficient evidence to support
especial cruelty finding when drowning victim conscious for
“thirty seconds to two minutes”); State v. Van Adams, 194 Ariz.
408, 421 ¶ 45, 984 P.2d 16, 29 (1999) (two to three minutes);
State v. Herrera, 176 Ariz. 21, 34, 859 P.2d 131, 144 (1993)
(“18 seconds to two or three minutes”).
48
wrath.

¶100 After Christine took Cassandra into her bedroom and

walked back out toward the living room, Cassandra watched Prince

throw her mother into Cassandra’s room and yell, “Who’s gonna

help you now, bitch” when Christine unsuccessfully attempted to

call 911. Prince repeated his threat to kill the family as

Cassandra sat on her bed and clutched a pillow. He grabbed the

pillow and pointed the gun at Cassandra, repeating his threat

and saying the last thing Christine would see was her “kids

dead.” Christine then stood in front of the gun and “begg[ed]

[Prince] to kill [her],” saying “Just shoot me, Wayne.” She

said, “[Y]ou don’t want to hurt Cassie, Wayne. You love Cassie.

. . . You don’t want to hurt her.” Prince responded by hitting

Christine and throwing her onto the bed beside Cassandra. As

Cassandra cowered on her bed and reached for her mother, Prince

pointed the gun at Cassandra’s head and shot her through the

pillow.

¶101 In challenging the especial cruelty finding, Prince

compares his case to Soto-Fong, 187 Ariz. at 204, 928 P.2d at

628, and Snelling, 225 Ariz. at 189 ¶ 32, 236 P.3d at 416, in

which we set aside such a finding. Unlike those cases, however,

the murder here did not occur rapidly. At least twenty minutes

passed between the time Prince and Cassandra arrived home and

the shooting occurred. During that time, Prince beat Christine,
49
locked the doors, threatened to kill the family, and assaulted

both Christine and Cassandra. Christine begged Prince to spare

Cassandra’s life. Cassandra witnessed the entire series of

events, and the effect on her was clear: she was pale, crying,

“scared to death,” and asked her mother “what [they] [were]

going to do.” Considering the entire sequence of events, we

find Cassandra had significant time to contemplate her fate,

unlike the victims in Soto-Fong and Snelling.

¶102 Prince next points to our statement in Prince II that

“[f]ew especially cruel findings . . . are predicated solely on

an inference that the victim contemplated his or her fate.” 206

Ariz. at 26 ¶ 8, 75 P.3d at 116. But later cases clearly

establish that the victim’s uncertainty is a sufficient, but not

necessary, basis for a finding of especial cruelty. See Tucker,

215 Ariz. at 311 ¶ 33, 160 P.3d at 190; Ellison, 213 Ariz. at

142 ¶ 120, 140 P.3d at 925. And Cassandra exhibited obvious

signs of mental anguish before Prince shot her.

¶103 Finally, Prince denies that he knew or should have

known that Cassandra would suffer because he was in a

dissociative state, making him unable to act reasonably.

Nothing in the record, however, supports this claim. Neither

mental health expert testified that Prince was in a dissociative

state at the time of the murder, and no other evidence was

presented on that point. To the contrary, the defense expert
50
testified that Prince knew right from wrong at that time, and

the State’s expert testified that Prince had time to reflect and

stop himself from committing the murder.

¶104 Prince asks us to take judicial notice that

individuals with borderline personality disorder also may suffer

from dissociative disorders. But an appellate court may take

judicial notice of a fact only if it is “so notoriously true as

not to be subject to reasonable dispute.” In re Cesar R., 197

Ariz. 437, 440 ¶ 7, 4 P.3d 980, 983 (App. 1999) (quotation

omitted). Because the subject matter involves psychiatric

diagnoses and disorders, it is not appropriate for judicial

notice.

¶105 The State produced sufficient evidence to establish

beyond a reasonable doubt the “especially cruel” aggravator

under § 13-751(F)(6).

B. Mitigation

¶106 Prince presented evidence of one statutory mitigating

factor and four non-statutory mitigating factors. Prince has

the burden to prove mitigating circumstances by a preponderance

of the evidence. A.R.S. § 13-751(C).

1. Significant Impairment - § 13-751(G)(1)

¶107 If the defendant’s capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of the law is significantly impaired, it
51
constitutes statutory mitigation. A.R.S. § 13-751(G)(1).

Personality or character disorders, however, usually are

insufficient to establish this mitigator. Velazquez, 216 Ariz.

at 314 ¶ 65, 166 P.3d at 105; State v. Kayer, 194 Ariz. 423, 437

¶ 49, 984 P.2d 31, 45 (1999).

¶108 Prince claims his ability to conform his conduct to

the law was significantly impaired on the night of the murder.

Although he correctly points out that neither mental health

expert opined that he had the capacity to conform his actions to

the law, neither expert testified that Prince did not have that

capability. Importantly, neither expert testified that Prince

had entered a dissociative state when he shot Cassandra. Once

again, Prince asks this Court to take judicial notice that

people with a borderline personality disorder suffer from

dissociative disorders, but as discussed earlier (see supra

¶ 104), psychiatric diagnoses are not an appropriate subject for

judicial notice. Prince has thus failed to prove this

mitigating factor.

2. Difficult Childhood

¶109 A difficult or traumatic childhood is a mitigating

circumstance. Armstrong, 218 Ariz. at 465 ¶ 74, 189 P.3d at

392. Although the defendant need not prove a causal nexus

between the mitigating circumstance and the crime, the lack of

such a connection may lessen the mitigation’s weight. Id.;
52
McCray, 218 Ariz. at 260 ¶ 36, 183 P.3d at 511. Difficult

childhood circumstances also receive less weight as more time

passes between the defendant’s childhood and the offense.

McCray, 218 Ariz. at 260 ¶ 36, 183 P.3d at 511; Pandeli, 215

Ariz. at 532 ¶ 72, 161 P.3d at 575.

¶110 Prince established by a preponderance of the evidence

that he endured a difficult and abusive childhood. His father

was an alcoholic, abusive to his wife and children and often on

the run from law enforcement. As a child, Prince lived in an

old barn in rural Virginia that lacked adequate heat, running

water, a kitchen, or a bathroom. Prince’s psychiatric expert

characterized those economic conditions as “really, really

severe poverty.” When Prince was ten, his mother and the

children fled by bus to Arizona. During his teenage years,

Prince lived at various times with an adult male who provided

drugs and alcohol in return for sex. At trial, the parties

stipulated that this individual molested and sexually abused

Prince.

¶111 Prince undoubtedly had a very difficult childhood. We

consider it in mitigation but give it little weight because he

has not established a connection between his childhood trauma

and the murder. Moreover, Prince was twenty-six years old when

he killed Cassandra, attenuating the impact of his dysfunctional

childhood on his conduct. See State v. McGill, 213 Ariz. 147,
53
161 ¶ 63, 140 P.3d 930, 944 (2006).

¶112 Prince compares his case with Bocharski, in which we

vacated a death sentence on independent review because of the

defendant’s abusive childhood, severe neglect, and alcoholism.

218 Ariz. at 497-99 ¶¶ 101-12, 189 P.3d at 424-26. In

Bocharski, however, the defendant established a causal nexus

between the crime and the mitigating evidence. Id. at 499

¶ 110, 189 P.3d at 426 (“Dr. Beaver testified that Bocharski’s

troubled upbringing helped cause the murder of [the victim]: He

testified that Bocharski’s emotional and alcoholic state likely

played a substantial role in the events that led to the murder

. . . and that a person in his state would have been far less

able than others to control and manage his feelings and

reactions.”). Here, in contrast, Prince did not prove a causal

connection between his childhood and the crime.

3. Poor Mental Health

¶113 Poor mental health that does not rise to the level of

statutory mitigation under § 13-751(G)(1) may nonetheless be a

non-statutory mitigating factor. See Velazquez, 216 Ariz. at

314 ¶ 65, 166 P.3d at 105. Absent a causal nexus to the crime,

however, we usually give it little weight. Armstrong, 218 Ariz.

at 465 ¶ 77, 189 P.3d at 392. We weigh mental health mitigation

“in proportion to a defendant’s ability to conform or appreciate

the wrongfulness of his conduct.” State v. Boggs, 218 Ariz.
54
325, 344 ¶ 94, 185 P.3d 111, 130 (2008) (quotation omitted).

¶114 Prince established that he suffers from mental

illness. Both mental health experts opined that Prince suffered

from a mental disorder. Prince’s expert diagnosed him with

borderline personality disorder. The State’s expert diagnosed

Prince with anti-social personality disorder and agreed that

Prince also exhibited some symptoms of borderline personality

disorder. Regardless of which specific diagnosis is correct,

the record reflects that Prince’s mental health is poor and,

therefore, is a mitigating factor.

¶115 Prince claims a connection exists between his

borderline personality disorder and the murder. His expert

testified that individuals with borderline personality disorders

have “labile mood[s]” characterized by bouts of “intense and

inappropriate anger,” causing them to destroy relationships and

act impulsively. According to Prince, his violent upbringing

exacerbated his disorder, making him unable to cope with the

violent domestic dispute that resulted in Cassandra’s death.

¶116 The expert, however, also testified that Prince knew

right from wrong, and the State’s expert testified that Prince

had time to reflect and stop himself from committing the murder.

Neither expert could establish Prince’s mental state on the

night of the shootings. And as stated earlier, neither expert

testified that Prince was in a dissociative state, as Prince now
55
claims.

¶117 At most, Prince proved that he has a personality

disorder, not that “the disorder controlled [his] conduct.”

State v. Brewer, 170 Ariz. 486, 505-06, 826 P.2d 783, 802-03

(1992) (concluding “[d]efendant’s borderline personality

disorder [did] not warrant a reduction of his sentence to life

imprisonment”); see State v. Stuard, 176 Ariz. 589, 613, 863

P.2d 881, 905 (1993) (“Even if [the defendant] became enraged

when confronted by his victims, he still displayed some ability

to control his actions . . . . The doctors agree he appreciated

the wrongfulness of his conduct and that he did not lose touch

with reality.”). Consequently, because Prince has failed to

establish a causal nexus between his poor mental health and the

murder, we give this factor little mitigating weight. See

Boggs, 218 Ariz. at 344 ¶ 95, 185 P.3d at 130 (finding no causal

link between mental health issues and crime when experts could

not establish defendant’s mental state or that defendant “did

not know right from wrong”); Pandeli, 215 Ariz. at 533 ¶ 81, 161

P.3d at 576 (giving the defendant’s “mental health mitigation

minimal weight” when the evidence showed he “knew right from

wrong, was not significantly impaired, and did not demonstrate a

causal nexus between his mental impairments and the murder”).

¶118 Prince also claims that his suicidal behavior on the

night of the murder is a mitigating factor. Although suicidal
56
behavior is arguably subsumed within the statutory mitigating

factor of significant impairment or the non-statutory factor of

poor mental health, we give this factor its own mitigating

weight. See Williams v. Ryan, 623 F.3d 1258, 1270 (9th Cir.

2010) (“[A] sentencing court must consider all mitigating

evidence.”). Although the testimony established that Prince

exhibited suicidal tendencies, it also established that Prince

knew it was wrong to shoot Cassandra, even if he was suicidal.

As a result, Prince’s suicidal behavior is entitled to little

mitigating weight.

¶119 Finally, Prince claims as a mitigating factor his

emotional and learning disabilities. These disabilities are a

non-statutory mitigating factor but their lack of connection to

the crime affects the weight we accord them. See State v.

Doerr, 193 Ariz. 56, 71 ¶ 73, 969 P.2d 1168, 1183 (1998)

(concluding no connection existed between the defendant’s low IQ

and the murder).

¶120 When Prince moved to Arizona, he was placed in classes

for children with significant emotional disabilities. In high

school, he attended classes for the learning disabled, but

dropped out during the tenth grade. Prince has an IQ of 85 to

90, which his expert described as borderline mental retardation,

but which the State’s expert described as normal intelligence.

Once again, however, Prince has not established any connection
57
between his disabilities and the crime, making them entitled to

little mitigating weight.

4. Remorse

¶121 A defendant’s expression of remorse is a non-statutory

mitigating factor. State v. Spreitz, 190 Ariz. 129, 150, 945

P.2d 1260, 1281 (1997). During his mental health evaluation,

Prince said that he felt great remorse for Cassandra’s death and

that he would always regret killing her because she did not

deserve to die. Prince also gave a brief allocution in the

penalty phase, stating he was “extremely sorry for the pain that

[he] caused everyone.” Prince has thus established this

mitigating factor, and it is entitled to some weight.

C. Propriety of Death Sentence

¶122 In light of the relatively weak mitigation and the two

aggravating factors, we conclude that Prince’s mitigation is not

sufficiently substantial to warrant leniency.

IV. CONCLUSION

¶123 For the foregoing reasons, we affirm Prince’s death

sentence.8

__________________________________
A. John Pelander, Justice

8
Prince raises twenty-two issues to avoid preclusion on
federal review. Those issues are presented verbatim in the
Appendix.
58
CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

__________________________________
W. Scott Bales, Justice

__________________________________
Robert M. Brutinel, Justice

__________________________________
Michael D. Ryan, Justice (Retired)∗

APPENDIX

1. 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, Sections 1, 4, and 15 of
the Arizona Constitution. See State v. Cromwell, 211
Ariz. 181, 192, 119 P.3d 449, 459 (2005).

2. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants
whose victims have been Caucasian, in violation of the
Eighth and Fourteenth Amendments and Article 2,
Sections 1, 4, and 13 of the Arizona Constitution.
See State v. West, 176 Ariz. 432, 455, 862 P.2d 192,
215 (1993).

3. 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, Section 15 of the Arizona Constitution.

∗
Justice Andrew D. Hurwitz has recused himself from this
case. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Michael D. Ryan, Retired, was
designated to sit in this matter.
59
See State v. Harrod, 200 Ariz. 309, 26 P.3d 492
(2001).

4. Execution by lethal injection is per se cruel and
unusual punishment. State v. Hinchey, 161 Ariz. 307,
315, 890 P.2d 602, 610 (1995).

5. Arizona’s death penalty statute
unconstitutionally requires defendants to prove that
their lives should be spared. State v. Fulminante,
161 Ariz. 237, 258, 779 P.2d 602, 623 (1988).

6. Arizona’s death penalty statute
unconstitutionally requires imposition of the death
penalty whenever at least one aggravating circumstance
and no mitigating circumstances exist. State v.
Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996).

7. The statute unconstitutionally fails to require
the cumulative consideration of multiple mitigating
factors or require specific findings to be made as to
each factor. State v. Gulbrandson, 184 Ariz. 46, 69,
906 P.2d 579, 602 (1995).

8. The death penalty is unconstitutional because it
permits jurors unfettered discretion to impose death
without adequate guidelines. State v. Johnson, 212
Ariz. 425, 440, 133 P.3d 735, 750 (2006).

9. The statute is unconstitutional because there are
no statutory standards for weighing. State v. Atwood,
171 Ariz. 576, 645-46, 832 P.2d 593, 662-63 (1992).

10. The statute insufficiently channels the
sentencer’s discretion in imposing the death sentence.
State v. Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31
(1991).

11. Appellant claims that a proportionality review of
a defendant’s death sentence is constitutionally
required. State v. Gulbrandson, 184 Ariz. 46, 73, 906
P.2d 579, 606 (1995).

12. Appellant claims that the State’s failure to
allege an element of a charged offense, the
aggravating factors that made the defendant death
eligible, is a fundamental defect that renders the
60
indictment constitutionally defective. McKaney v.
Foreman, 209 Ariz. 268, 271, 100 P.3d 18, 21 (2004).

13. Appellant asserts that the application of the new
death penalty statute passed in response to Ring v.
Arizona, 536 U.S. 584 (2002), violates a defendant’s
right against ex post facto application of new laws.
State v. Ring, 204 Ariz. 534, 547 ¶ 23, 65 P.3d 915,
928 (2003).

14. Appellant claims that execution by lethal
injection is cruel and unusual punishment. State v.
Van Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 (1999).

15. Subjecting Appellant to a new trial on the issues
of aggravation and punishment before a new jury
violated the double jeopardy clause of the Fifth
Amendment. State v. Ring, 204 Ariz. 534, 547, 65 P.3d
915, 928 (2003).

16. 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).

17. The absence of notice of aggravating factors
prior to Appellant’s guilt phase trial violates the
Sixth, Eighth, and Fourteenth Amendments. State v.
Anderson, [210] Ariz. 327, 347, 111 P.3d 369, 389
(2005).

18. The reasonable doubt instruction at the
aggravation phase lowered the 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, 74
P.3d 231, 249 (2003).

19. Subjecting Appellant to a new trial on the issues
of aggravation and punishment before a new jury
violated the due process clause of the Fourteenth
Amendment. State v. Ellison, 213 Ariz. 116, 137, 140
P.3d 899, 920 (2006).

20. Requiring the jury to unanimously determine
whether the mitigating factors were sufficiently
substantial to call for leniency violated the Eighth
61
Amendment. State v. Ellison, 213 Ariz. 116, 137, 140
P.3d 899, 920 (2006).

21. The trial court’s refusal to admit stipulation
that Appellant would waive parole violated his right
to due process under the Fourteenth Amendment and his
right to have jury consider all mitigation under the
Eighth Amendment. State v. Dann, 220 Ariz. 351, 207
P.3d 604 (2009).

22. Arizona’s death statute create an
unconstitutional presumption of death and places an
unconstitutional burden on Appellant to prove that
mitigation is sufficiently substantial to call for
leniency. State v. Glassel, 211 Ariz. 33, 52, 116
P.3d 1193, 1212 (2005).

62