State v. Delahanty

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0133-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2005-114414
DONALD DAVID DELAHANTY, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Warren J. Granville, Judge

AFFIRMED
________________________________________________________________

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

MICHAEL J. DEW Phoenix
Attorney for Donald David Delahanty
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 Donald David Delahanty was convicted of first degree

murder, attempted arson, conspiracy to commit first degree

murder, and solicitation to commit first degree murder. He was

sentenced to death for the murder and to prison terms for the

other offenses. We have jurisdiction over his appeal under
Article VI, Section 5(3) of the Arizona Constitution and A.R.S.

§§ 13-4031 and 13-4033(A)(1) (2010).1

I. FACTS AND PROCEDURAL BACKGROUND2

¶2 On May 10, 2005, Delahanty shot Phoenix Police Officer

David Uribe three times in the head and neck, killing him.

Officer Uribe, driving a marked patrol car, had stopped a car

driven by Christopher Wilson. Delahanty was in the front

passenger seat of the car and John Armendariz sat in the back

seat. As Wilson sped from the scene, Delahanty said “I just

shot a cop”; “we got to burn the car.” After Wilson stopped the

car, Delahanty unsuccessfully attempted to destroy it by

shooting its gas tank.

¶3 Delahanty and Wilson were charged with first degree

murder. Wilson pleaded guilty to second degree murder and

testified against Delahanty. While awaiting trial, Delahanty

sent letters to a girlfriend seeking to have Wilson and Wilson’s

mother killed.

¶4 After conviction, Delahanty and the State waived a

jury trial on aggravation. The trial judge found that Delahanty

had been convicted of serious offenses committed on the same

1
This opinion cites the current version of statutes that
have not materially changed since the events at issue.
2
We view the facts “in the light most favorable to upholding
the verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
2 
occasion as the homicide, A.R.S. § 13-751(F)(2), and that the

victim was a peace officer killed while performing official

duties, A.R.S. § 13-751(F)(10).

¶5 Shortly after the penalty phase began, Delahanty

sought to waive presentation of mitigation. The trial judge

appointed Dr. Bruce Kushner, a psychologist, to determine

whether Delahanty was competent to do so. After receiving Dr.

Kushner’s report, the court concluded that Delahanty had

knowingly, intelligently, and voluntarily waived his right to

present mitigation. The jury subsequently determined that

Delahanty should be sentenced to death.

II. ISSUES ON APPEAL

A. Prescreening Evaluation

¶6 The State filed its notice of intent to seek the death

penalty in September 2005. The trial court failed to order a

competency prescreening, and Delahanty did not object or himself

request one. He now claims that the court erred in not ordering

a competency prescreening. Because Delahanty did not object

below, he must show “both that fundamental error exists and that

the error in his case caused him prejudice.” State v.

Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).

¶7 When the State seeks the death penalty, A.R.S. § 13-

754(A) provides that the superior court “shall appoint a

psychologist or psychiatrist” to conduct a “prescreening

3 
evaluation” to determine whether there is a reasonable basis to

order further examination of the defendant’s competence to stand

trial. Because the statutory language is mandatory, see State

v. Harrod, 218 Ariz. 268, 277 ¶ 28, 183 P.3d 519, 528 (2008),

the superior court erred in not ordering an evaluation, cf.

State v. Armstrong, 218 Ariz. 451, 458 ¶ 15, 189 P.3d 378, 385

(2008) (finding error in failure to order statutorily required

mental retardation prescreening).

¶8 However, Delahanty cannot establish fundamental error.

A competency hearing is required only if “on the basis of the

facts and circumstances known to the trial judge, there was or

should have been a good faith doubt about the defendant's

ability . . . to participate intelligently in the proceedings.”

State v. Cornell, 179 Ariz. 314, 322-23, 878 P.2d 1352, 1360-61

(1994) (internal citation and quotation marks omitted); see also

Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir. 2001) (finding

competency hearing required if the evidence “raises a bona fide

doubt about the defendant’s competence to stand trial”). The

critical inquiry is “whether [the defendant] has sufficient

present ability to consult with his lawyer with a reasonable

degree of rational understanding – and whether he has a rational

as well as factual understanding of the proceedings against

him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per

curiam); see also Ariz. R. Crim. P. 11.1.

4 
¶9 The record is replete with evidence that Delahanty

understood the proceedings against him and was able to assist in

his own defense. Delahanty testified in a pre-trial hearing on

a motion to dismiss, filed a pro se motion for “hybrid

representation” on the attempted arson count, and spoke directly

with the trial judge about an alleged conflict of interest with

counsel. The trial court observed Delahanty throughout the

trial and characterized his behavior as “appropriate.”

¶10 Delahanty nonetheless contends that the trial court’s

appointment of a psychologist in connection with his waiver of

mitigation and the report of Dr. Joseph Wu submitted at

sentencing on the non-capital counts raised a “bona fide doubt”

as to his competence. We disagree. Before ordering Dr. Kushner

to evaluate Delahanty, the trial court made clear that it had no

doubts about Delahanty’s ability to understand the proceedings,

but simply wanted to make sure that he understood the

consequences of the waiver. Cf. Godinez v. Moran, 509 U.S. 389,

401 n.12 (1993) (noting that competency involves the defendant’s

general ability to understand proceedings, but “the purpose of

the knowing and voluntary inquiry . . . is to determine whether

the defendant actually does understand the significance and

consequences of a particular decision”) (internal quotation

marks omitted)). Dr. Kushner concluded that Delahanty

5 
understood the consequences of waiving mitigation, and nothing

in his report raised any doubt as to Delahanty’s competence.

¶11 Nor does Dr. Wu’s report suggest a contrary

conclusion. Dr. Wu opined that Delahanty suffered from physical

trauma to the brain and that “brain damage of that nature

reduces the ability of an individual to control impulsive

violent urges.” Volatility, however, should not “be equated

with mental incompetence to stand trial.” Burket v. Angelone,

208 F.3d 172, 192 (4th Cir. 2000).

¶12 Accordingly, Delahanty has failed to establish

fundamental error. We nonetheless caution all participants in a

capital murder trial - defense counsel, the State, and the trial

judge – that a competency prescreening is required unless

waived, even when the defendant does not request one.

B. Cross-Examination on Psychiatric History

¶13 During a police interview several days after the

shooting, Wilson said he had not been taking certain prescribed

medications. After reviewing this interview, the defense

obtained Wilson’s records from Correctional Health Services

(“CHS”). These records indicate that Wilson told CHS staff that

he had been diagnosed with schizophrenia in Indiana, but they do

not contain an independent diagnosis of schizophrenia or a

confirmation of any previous diagnosis.

6 
¶14 The State moved in limine to preclude Delahanty from

inquiring into Wilson’s mental health history at trial, arguing

that no evidence suggested that mental disease affected his

ability to perceive and relate events and that discussing mental

health would confuse and unduly prejudice the jury. Delahanty

responded, attaching an entry from the Diagnostic and

Statistical Manual of Mental Disorders which stated that

schizophrenia can cause delusions and hallucinations.

¶15 Delahanty supplemented the response with a report from

Dr. George DeLong, a clinical psychologist, who noted that in

the CHS records, Wilson “report[ed] that he has been diagnosed

with Schizophrenia.” Dr. DeLong concluded, however, that

Wilson’s “use of drugs throughout his childhood and adult life

confounds the ability of any practitioner to make a diagnosis of

Schizophrenia as an independent illness in this case.” Dr.

DeLong further noted that Wilson had “a number of conditions

and/or symptoms that research conclusively demonstrates to

negatively impact a person’s abilities to attend, concentrate,

and recall.”

¶16 The trial court denied the motion in limine in part

and granted it in part, stating as follows:

The Court finds that the ability to perceive is always
a relevant fact. The Court also recognizes under
[Rule] 403 issues of confusion. The Court would allow
either party to elicit that Mr. Wilson . . . had been
prescribed medicine May 10th, 2005, and he was on it

7 
 or not on it, and what he self perceives his ability
to perceive was. The Court would not admit any
testimony by any other lay person in terms of any
diagnosis, effects of any particular medicine, but
would allow any percipient witness to testify
regarding the demeanor, ability to perceive of Mr.
Wilson, during the relevant period . . . .

There will be no evidence regarding schizophrenia.
The Court finds insufficient proffer of what impact,
if any, a diagnosis of schizophrenia has on a witness’
ability to perceive or relate events.

During cross-examination, Wilson testified that he had stopped

taking his medications a month before the murder because they

were too expensive, but that his memory was not affected.

¶17 Delahanty contends that precluding evidence of

Wilson’s alleged schizophrenia denied him a fair trial. We

review limitations on the scope of cross-examination for abuse

of discretion. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162,

166 (1982).

¶18 “Evidence of a witness’s psychological history may be

admissible when it goes to [his or] her credibility.” United

States v. Sasso, 59 F.3d 341, 347 (2d Cir. 1995). However,

recognizing that “[m]any psychiatric problems do not affect a

witness’s credibility or capacity to observe and communicate,”

we have held that the psychiatric history of a witness may be

excluded under Arizona Rule of Evidence 403 unless the proponent

“make[s] an offer of proof showing how it affects the witness’s

ability to observe and relate the matters to which he

8 
testifies.” Zuck, 134 Ariz. at 513, 658 P.2d at 166 (upholding

exclusion of evidence of paranoid schizophrenia). Some federal

cases take a seemingly broader approach, suggesting that a

schizophrenia diagnosis is generally admissible to attack a

witness’s credibility. See, e.g., United States v. Jimenez, 256

F.3d 330, 343 (5th Cir. 2001) (“[T]he decisions of this and

other circuits stand for the general principle that a diagnosis

of schizophrenia . . . will be relevant, unless the diagnosis is

too remote in time from the events alleged in the indictment.”).

¶19 In this case, however, there was no diagnosis of

schizophrenia presented. The only evidence in the record

suggesting that Wilson suffered from schizophrenia was an

unconfirmed statement he made to a CHS employee. Dr. Delong, a

defense expert and the only mental health professional to

address the issue, concluded that Wilson’s history “confounds

the ability of any practitioner to make a diagnosis of

Schizophrenia.” (Emphasis added.) Delahanty did not request an

independent examination of Wilson. Moreover, although nothing

in the trial court’s order prevented Dr. DeLong from testifying

about Wilson’s alleged cognitive deficiencies, Delahanty chose

not to call Dr. DeLong as an expert witness.

¶20 Wilson was subjected to lengthy cross-examination

about his credibility, including extensive reference to his plea

bargain. See, e.g., United States v. Rivera-Santiago, 872 F.2d

9 
1073, 1085 (1st Cir. 1989) (upholding trial court’s exclusion of

evidence of a witness’s psychiatric evaluation when the witness

“received a complete and thorough grilling by defense counsel on

all matters that properly went to her credibility”). More

importantly, Wilson was not the only eyewitness to the murder.

His account was substantially similar to that of Armendariz. It

thus seems quite unlikely that his testimony resulted from a

schizophrenic delusion.

¶21 On this record, the trial court did not abuse its

discretion by precluding Delahanty from mentioning schizophrenia

during Wilson’s cross-examination.

C. Lesser-Included Offense Instructions

¶22 Delahanty requested jury instructions on the lesser-

included offenses of second degree murder, manslaughter, and

negligent homicide. The trial court denied the request, stating

that “there are no facts supporting any lesser included

offense.” We review for abuse of discretion. State v. Wall,

212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006).

¶23 In a first degree murder trial, instructions for

second degree murder, manslaughter, or negligent homicide are

required when supported by the evidence. State v. Dumaine, 162

Ariz. 392, 403, 783 P.2d 1184, 1195 (1989), disapproved on other

grounds by State v. King, 225 Ariz. 87, 90 ¶ 12, 235 P.3d 240,

243 (2010). “To determine whether sufficient evidence existed

10 
to require a lesser-included offense instruction, [we] must

examine whether the jury could rationally fail to find the

distinguishing element of the greater offense.” State v.

Bearup, 221 Ariz. 163, 168 ¶ 23, 211 P.3d 684, 689 (2009)

(internal quotation marks omitted).

¶24 Delahanty was convicted under A.R.S. § 13-1105(A)(3),

which provides that a person commits first degree murder if,

“[i]ntending or knowing that the person's conduct will cause

death to a law enforcement officer, the person causes the death

of a law enforcement officer who is in the line of duty.” He

contends that the jury should have been instructed on second

degree murder both because he may have only intended to inflict

serious physical injury, A.R.S. § 13-1104(A)(2), and because

testimony about his “freaking out” during the traffic stop

suggests that he only acted recklessly, A.R.S. § 13-1104(A)(3).

He further argues that a manslaughter instruction was

appropriate because of his “confused emotional state” and

“panicked response to being stopped.”

¶25 The evidence does not support Delahanty’s contentions.

Delahanty shot Officer Uribe three times at close range in the

face and neck during a routine traffic stop, actions almost

certain to bring about death. Officer Uribe was in full uniform

and driving a marked police cruiser with its lights engaged.

Delahanty undoubtedly knew he was shooting a police officer.

11 
¶26 Moreover, Delahanty shot Officer Uribe after telling

Armendariz that if he was ever pulled over by an officer, “I

would shoot him, I would kill him,” and after telling another

friend that he would “shoot to kill when he got pulled over.”

Delahanty’s previous statements did not suggest anything other

than intent to kill. There was no evidence that Delahanty acted

in a simply reckless manner. Cf. State v. Ovind, 186 Ariz. 475,

477, 924 P.2d 479, 481 (App. 1996) (finding killing committed

“knowingly” when defendant threatened victim, shot him in the

head, and left a note relating what she had done).

¶27 On this evidence, no rational jury could have found

that Delahanty committed a lesser-included offense. Thus, the

trial court did not err in declining the requested defense

instructions.

D. Waiver of Mitigation

¶28 After opening statements on the first day of the

penalty phase, Delahanty’s counsel told the trial judge that his

client was “seriously considering” waiving mitigation. Counsel

then requested a competency evaluation. The court stated that

in the opening statements for the penalty phase,
[defense counsel] had proffered that there will be at
least three different expert witnesses testifying
about mental health issues.

Because of that, and solely because of that, and not
because of any belief that you’re not – your inability

12 
 to understand what’s going on right now, the Court
will order a Rule 11 examination of you.

¶29 The court then ordered Dr. Kushner to evaluate

Delahanty. Based on Dr. Kushner’s report, the court found

Delahanty “competent to render any decision with respect to

mitigation.”

¶30 Delahanty now argues that the trial court erred

because Arizona Rule of Criminal Procedure 11.3(a) requires the

court to “appoint at least two mental health experts to examine

the defendant and to testify regarding the defendant’s mental

condition” when it “determines that reasonable grounds for an

examination exist.” Delahanty did not raise this argument

below, so we review for fundamental error.

¶31 Although the trial judge referred to Rule 11 when

appointing Dr. Kushner, it is not clear that the appointment was

made pursuant to that Rule. Rule 11.2(a) provides for an

examination as to “whether a defendant is competent to stand

trial.” The superior court explicitly stated that it had no

question as to Delahanty’s competence, and plainly ordered the

evaluation to determine whether he was acting knowingly and

intelligently in waiving his right to present mitigation. See

Godinez, 509 U.S. at 401 n.12 (noting distinction between

competence to stand trial and competence to waive certain

constitutional rights).

13 
¶32 Even assuming the trial court did order a Rule 11

evaluation, there was no reversible error. Under Rule 11.2(c),

the court “may order that a preliminary examination be conducted

pursuant to A.R.S. § 13-4503C to assist the court in determining

if reasonable grounds exist to order further examination of the

defendant.” Section 13-4503(C) in turn provides that “[t]he

court may request that a mental health expert assist the court

in determining if reasonable grounds exist for examining a

defendant.” Further examination is required only when the court

finds such “reasonable grounds.” Ariz. R. Crim. P. 11.3(a).

¶33 Dr. Kushner’s examination was, at most, the functional

equivalent of the “preliminary examination” contemplated by Rule

11.2(c) and § 13-4503(C). His report did not suggest reasonable

grounds for further examination. Rather, he concluded that

Delahanty understood “the implications” of waiving mitigation

and was “able to rationalize his choice outside of any

pathological thought processes.” Delahanty decided to waive

mitigation, Dr. Kushner reported, because his family’s

participation would cause “more angst” and the penalty phase

would be difficult for Officer Uribe’s family.

¶34 The record amply supports the trial court’s finding

that Delahanty knowingly and intelligently waived mitigation.

In addition to Dr. Kushner’s report, the court had before it a

written waiver, prepared by defense counsel and signed by

14 
Delahanty, which fully outlined the mitigation evidence that

could have been presented.

E. Issues Raised to Avoid Federal Preclusion

¶35 To avoid preclusion, Delahanty raises eighteen issues

that he states have been rejected in decisions by the Supreme

Court of the United States or this Court. These issues and the

decisions Delahanty identifies as rejecting them are listed in

the appendix to this opinion.

F. Review of the Death Sentence.

¶36 Because the murder of Officer Uribe occurred after

August 1, 2002, we review the 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). A finding of aggravating circumstances or

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

if “there is any reasonable evidence in the record to sustain

it.” State v. Morris, 215 Ariz. 324, 341 ¶ 77, 160 P.3d 203,

220 (2007) (internal quotation marks omitted).

¶37 The trial court did not abuse its discretion in

finding aggravating circumstances. Ample evidence supported the

court’s findings that Delahanty had been convicted of serious

offenses, A.R.S. § 13-751(F)(2), and that Delahanty knew or

should have known that the victim was an on-duty peace officer,

A.R.S. § 13-751(F)(10).

15 
¶38 Nor did the jury abuse its discretion in determining

that death was the appropriate sentence. We will not disturb

the jury’s decision if “any reasonable jury could have concluded

that the mitigation established by the defendant was not

sufficiently substantial to call for leniency.” Morris, 215

Ariz. at 341 ¶ 81, 160 P.3d at 220; see A.R.S. § 13-751(E).

Here, particularly given Delahanty’s decision not to present

mitigation evidence in the penalty phase, a reasonable jury

could conclude that the mitigation was not sufficiently

substantial to call for leniency.

III. CONCLUSION

¶39 For the foregoing reasons, we affirm Delahanty’s

convictions and sentences.

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

16 
17 
 APPENDIX

1. The death penalty is per se cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976); State v. Salazar, 173 Ariz. 399, 411,
844 P.2d 566, 578 (1992); State v. Gillies, 135 Ariz. 500,
507, 662 P.2d 1007, 1014 (1983).

2. Execution by lethal injection is cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d
602, 610 (1995).

3. The death statute is unconstitutional because it fails to
guide the sentencing jury. State v. Greenway, 170 Ariz.
155, 164, 823 P.2d 22, 31 (1991).

4. The statute unconstitutionally fails to require either
cumulative consideration of multiple mitigating factors or
that the jury make specific findings as to each mitigating
factor. State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d
579, 602 (1995); State v. Ramirez, 178 Ariz. 116, 131, 871
P.2d 237, 252 (1994); State v. Fierro, 166 Ariz. 539, 551,
804 P.2d 72, 84 (1990).

5. 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).

6. Arizona’s death statute insufficiently channels the
sentencer’s discretion in imposing the death sentence.
State v. West, 176 Ariz. 432, 454, 862 P.2d 192, 214
(1993); Greenway, 170 Ariz. at 162, 823 P.2d at 31.

7. Arizona’s death statute is unconstitutionally defective
because it fails to require the State to prove that death
is appropriate. Gulbrandson, 184 Ariz. at 72, 906 P.2d at
605.

8. The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. Salazar, 173 Ariz. at
411, 844 P.2d at 578.

9. The Constitution requires a proportionality review of a
defendant's death sentence. Salazar, 173 Ariz. at 416,844
P.2d at 583; State v. Serna, 163 Ariz. 260, 269-70, 787
P.2d 1056, 1065-66 (1990).

18 
10. There is no meaningful distinction between capital and non-
capital cases. Salazar, 173 Ariz. at 411, 844 P.2d at 578.

11. Applying a death statute enacted after the Supreme Court’s
decision in Ring II violates the ex post facto clauses of
the federal and state constitutions and A.R.S. § 1-244.
Ring III, 204 Ariz. at 545-47 ¶¶ 15-24, 65 P.3d at 926-928.

12. The death penalty is cruel and unusual because it is
irrationally and arbitrarily imposed and serves no purpose
that is not adequately addressed by life in prison. State
v. Pandeli, 200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153
(2001), vacated on other grounds, Ring v. Arizona, 536 U.S.
584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); State v.
Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

13. Arizona's death penalty statute is unconstitutional because
it requires imposition of the death penalty whenever at
least one aggravating circumstance and no mitigating
circumstances exist. Walton v. Arizona, 497 U.S. 639, 648,
110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); State v. Miles, 186
Ariz. 10, 19,918 P.2d 1028, 1037 (1996); State v. Bolton,
182 Ariz. 290, 310, 896 P.2d 830, 850 (1995). State v.
Tucker (“Tucker II”), 215 Ariz. 298, 160 P.3d 177 (2007).

14. The death penalty is unconstitutional because it permits
jurors unfettered discretion to impose death without
adequate guidelines to weigh and consider appropriate
factors and fails to provide principled means to
distinguish between those who deserve to die or live.
State v. Johnson, 212 Ariz. 425, 440 ¶ 69, 133 P.3d 735,
750 (2006).

15. 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 ¶¶ 81-87, 107 P.3d 900, 916-17
(2005).

16. The jury instruction that required 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
¶¶ 101-102, 140 P. 3d 899, 922 (2006).

19 
17. The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and
mitigating circumstances violates Appellant's rights under
the Sixth and Fourteenth Amendments. State v. Johnson, 212
Ariz. 425, 440 ¶¶ 29-35, 133 P.3d 735, 750 (2006).

18. Refusing to instruct the jury or permit the introduction of
evidence and argument regarding residual doubt violated
Appellant's rights under the Sixth, Eighth and Fourteenth
Amendments and Arizona law. State v. Harrod (Harrod III),
218 Ariz. 268, 278-79 ¶¶ 37-39, 183 P.3d 519, 529-30
(2008); State v. Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d
1006, 1020 (2007).

20